G & H Development L L C v. Penwell et al

Filing 158

MEMORANDUM RULING re 89 MOTION for Judgment on the Pleadings or in the alternative MOTION for Summary Judgment Regarding Plaintiff's Subdivision Applications filed by Doyle Adams, Fred A Rankin, Jim Morris, Benton-Parish Metropolitan Board of Adjustment, Benton-Parish Metropolitan Board of Appeals, 92 MOTION for Judgment on the Pleadings or in the alternative, MOTION for Summary Judgment regarding all Plaintiff's Claims related to the Denial of P laintiff's Subdivision Plat Applications filed by Police Jury Bossier Parish, Parish of Bossier, 88 MOTION for Judgment on the Pleadings or in the alternative MOTION for Summary Judgment Regarding Plaintiff's Subdivisi on Applications filed by Benton-Parish Metropolitan Planning Commission, 90 MOTION for Summary Judgment Addressing Claim IV filed by Police Jury Bossier Parish, Parish of Bossier, Benton-Parish Metropolitan Planning Commission. Signed by Judge S Maurice Hicks on 05/27/2015. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
G&H DEVELOPMENT, LLC

CIVIL ACTION NO. 13-0272

VERSUS

JUDGE S. MAURICE HICKS, JR.

NANCY PENWELL, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court are three dispositive motions (Record Documents 88, 89 & 92) filed
by Defendants, the Benton-Parish Metropolitan Board of Adjustment (“Board of
Adjustment”), the Benton-Parish Metropolitan Planning Commission (“Benton-Parish
MPC”), the Bossier Parish Police Jury (“Police Jury”), and the Parish of Bossier (“the
Parish”).1 The motions seek dismissal of Plaintiff G&H Development, LLC’s (“G&H”) federal
substantive due process claims related to Subdivision Plat Applications 1 and 2.
Defendants also address G&H’s claims under the Louisiana Constitution and its state law
claims, including a request for this Court to decline supplemental jurisdiction over any
remaining state law claims. G&H has opposed all three motions. See Record Documents
106, 107 & 110.
For the reasons set forth below, the defense motions (Record Documents 88, 89 &
92) are GRANTED. G&H’s federal and state substantive due process claims relating to the
Subdivision Plat Applications are DISMISSED and all remaining state law claims are
DISMISSED WITHOUT PREJUDICE.

1

All three motions are filed as ‘Motions for Judgment on the Pleadings (Or in the
Alternative, Motion for Summary Judgment).” Record Documents 88, 89 & 92. The Court
will decide the motions as Rule 56 Motions for Summary Judgment.

I.

BACKGROUND.2
G&H is the owner of certain property comprising 55 acres, more or less, located in

Section 24, Township 20 North, Range 14 West, Bossier Parish, Louisiana, (the “Property”)
within the jurisdiction of the Benton-Parish MPC. On June 10, 2012, G&H filed an
application with the Office of the Benton-Parish MPC (the “Office”) for rezoning of the
Property from its current classification of Residence-Agriculture R-A (“R-A”) to the
One-Family Residence R-1 (“R-1”) classification (the “Rezoning Application”).

This

Rezoning Application was filed in order for G&H to subdivide and develop the Property into
an urban type development of 154 individual, small lots each containing single family
dwellings. At the same time G&H filed the Rezoning Application, G&H also filed with the
Office an application for approval of a subdivision plat (“Subdivision Plat Application 1”).
Hearings were held by the Benton-Parish MPC on G&H’s Rezoning Application and
Subdivision Plat Application 1. There was considerable opposition by local residents to
rezoning of the Property. (Rec. Doc. 1, ¶¶ 40-46); (Rec. Doc. 36, ¶¶ 42-52). At the public
hearing, after G&H’s presentation and subsequent discussion and review, the
Benton-Parish MPC recommended denial of the Rezoning Application, and therefore and
thereafter, declared Subdivision Plat Application 1 moot.
G&H appealed the Benton-Parish MPC’s decision recommending denial of G&H’s
Rezoning Application and Subdivision Plat Application 1 to the Police Jury. On October 3,
2012, a hearing was held by the Police Jury in which members of the public opposed the

2

For the most part, the facts of this case are undisputed and have been drawn from
Defendants’ Statement of Material Facts (Record Documents 88-1, 89-1, 92-2) and G&H’s
responses (Record Documents 106-1, 107-1, 110-1). A citation to the record has been
provided for any disputed fact.
Page 2 of 19

Rezoning Application. During this hearing, G&H’s attorney “stated that he believe[d] that
Section 126-1161.4 of the Bossier Parish Code of Ordinances clearly applies to the
proposed development in that it provides that the ‘subdivision or imminent subdivision of
open land into urban building sites makes reclassification necessary and desirable.’”
Record Document 86, Exhibit 86 at 6.

After G&H’s presentation and subsequent

discussion and review, the Police Jury upheld the Benton-Parish MPC’s recommendation
to deny the Rezoning Application. Because the Rezoning Application was denied, the
Police Jury considered Subdivision Plat Application 1 moot, as the Police Jury believed the
Property was not zoned correctly for a residential subdivision. G&H did not seek state
judicial review of the adverse decision as permitted under La. R.S. § 33:4780.40.3
On November 9, 2012, Mr. J.D. Gill (“Gill”), on behalf of G&H, and G&H’s attorneys
attempted to submit a new subdivision application for the Property (“Subdivision Plat
Application 2”) to the Office. See Record Document 1 at ¶¶ 53-54); Record Document 36
at ¶¶ 59-60. The difference between Subdivision Plat Application 1 and Subdivision Plat
Application 2 is the removal of only 11 lots from the original 154 lots. G&H agrees that the

3

Section 4780.40 provides, in pertinent part:
For the purpose of promoting the health, safety, morals, or general
welfare of the community, the governing authorities of parishes . . . or their
duly created boards of adjustment are hereby authorized to regulate and
restrict the height, number of stories, and size of structures; the percentage
of lots that may be occupied; courts and other open spaces; the density of
population; and the location and use of the buildings, structures, and land for
trade, industry, residence, or other purposes. However, the zoning
ordinances enacted by said governing authority and the acts of its zoning
commission, board of adjustment, or zoning administrator shall be subject to
judicial review on the grounds of abuse of discretion, unreasonable exercise
of police powers, excessive use of the power herein granted, or the denial of
the right of due process.
Page 3 of 19

two subdivision plat applications are substantially similar.

Defendants contend that

because Subdivision Plat Application 2 was not accompanied by an application for
rezoning, Ms. Nancy Penwell (“Penwell”), the Zoning Administrator of the Office, did not
submit Subdivision Plat Application 2 to the Benton-Parish MPC. Penwell based this
decision on an administrative interpretation of the applicable zoning ordinances. See
Record Document 86, Exhibit 80 (Affidavit of Nancy Penwell Regarding Subdivision
Application 2); see also Record Documents 50 & 51.4 Penwell instructed G&H and its
attorneys to direct any questions to the Parish Attorney, Mr. Patrick Jackson (“Jackson”).
It does not appear that G&H and its attorneys consulted Jackson. Rather, they left
Subdivision Plat Application 2 on Penwell’s desk.5 Defendants contend that Penwell
rejected Subdivision Plat Application 2 and never submitted it to the Benton-Parish MPC.
Rather, she forwarded Subdivision Plat Application 2 to Jackson.
Pursuant to a letter dated December 4, 2012, Jackson returned Subdivision Plat
Application 2 to G&H based on Penwell’s administrative interpretation of the applicable
zoning ordinances. In his letter, Jackson informed G&H that it could file an appeal with the
Board of Adjustment under Bossier Parish Code of Ordinances, Section 126-1139 (a)(1),
if it disagreed with the administrative interpretation of Penwell.
G&H then filed an appeal to the Board of Adjustment. A public hearing of the Board

4

This Court has held that the actions of Penwell in relation to Subdivision Plat Application
2 fell within the scope of her discretionary authority as Zoning Administrator and were
objectively reasonable, thus entitling her to qualified immunity. See Record Documents 50
& 51.
5

G&H argues that leaving Subdivision Plat Application 2 on the desk of Penwell and her
forwarding the application to Jackson is the equivalent of submitting the application. See
Record Document 107-1 at ¶¶ 15, 19-20.
Page 4 of 19

of Adjustment was set for January 17, 2013. After the public hearing on January 17, 2013,
the Board of Adjustment voted to deny the appeal, upholding Penwell’s administrative
interpretation of the zoning ordinances that Subdivision Plat Application 2 could not be
accepted without an accompanying application for rezoning of the Property from R-A to
R-1.
G&H subsequently requested an appeal of the Benton-Parish MPC and the Board
of Adjustment’s denial of a proposed subdivision plat before the Police Jury pursuant to a
letter dated January 31, 2013. The Police Jury held a public hearing on March 6, 2013.
At the public hearing on March 6, 2013, the Police Jury declined jurisdiction to decide the
appeal and advised G&H that its appeal of the decision of the Board of Adjustment was to
state district court pursuant to La. R.S. 33:4780.47(A),6 not the Police Jury. G&H did not
seek judicial review in the state court system, but rather filed the instant federal lawsuit on
February 4, 2013.
II.

LAW AND ANALYSIS.
A.

Summary Judgment Standard.

Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is

6

Section 4780.47(A) provides:
Any person or persons jointly or severally aggrieved by any decision by the
board of adjustment relative to any officer, department, board, or bureau of
the parish may present a petition to the district court of the parish in which
the property affected is located. Such petition shall be duly verified, set forth
that the decision is illegal, in whole or in part, and specify the grounds of the
illegality. The petition shall be presented to the court within thirty days after
the filing of the decision in the office of the board.
Page 5 of 19

entitled to judgment as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir.2010).7 “Rule 56[(a)] mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir.2004).
“A party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). If the
moving party fails to meet this initial burden, the motion must be denied, regardless of the
nonmovant’s response. See Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995).
If the movant demonstrates the absence of a genuine dispute of material fact, “the
nonmovant must go beyond the pleadings and designate specific facts showing that there
is a genuine [dispute] for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th
Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could
not support a judgment in favor of the nonmovant, then summary judgment should be
granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). Where the
parties dispute the facts, the Court must view the facts and draw reasonable inferences in

7

The Court notes that Rule 56 now employs the phrase “genuine dispute,” rather than
“genuine issue.” This 2010 amendment does not alter the Court’s analysis, as there was
not a substantive change to the summary judgment standard. See F.R.C.P. 56(a) and
advisory committee’s note.
Page 6 of 19

the light most favorable to the plaintiff. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct.
1769 (2007). In sum, the motion for summary judgment “should be granted so long as
whatever is before the district court demonstrates that the standard for the entry of
summary judgment, as set forth in Rule 56(c), is satisfied.” Celotex Corp., 477 U.S. at 323,
106 S.Ct. at 2553.
B.

Legal Analysis.

“Deprivation by the state of a protected interest in life, liberty, or property is
prerequisite to a claim for denial of [substantive] due process.” Shelton v. City of Coll.
Station, 780 F.2d 475, 479 (5th Cir. 1986). If the plaintiff can establish an infringement
upon a protected interest in life, liberty, or property, then he must also demonstrate that the
defendant’s infringement was arbitrary and capricious. See FM Properties Operating Co.
v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996).8 Additionally, “when challenges to . . .
land-use decisions aspire to constitutional stature, [courts] view those decisions as
‘quasi-legislative’ in nature, and thus sustainable against a substantive due process
challenge if there exists therefor ‘ any conceivable rational basis.’” Id. “In other words, such
government action comports with substantive due process if the action is rationally related
to a legitimate government interest.”

Id.

Such government action will be declared

unconstitutional only if it “is clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.” Id.
Defendants argue that G&H waived any potential protected interest it may have had

8

In FM Properties, the Fifth Circuit stated that “review of municipal zoning is within the
domain of the states, the business of their own legislatures, agencies, and judiciaries, and
should seldom be the concern of federal courts.” FM Properties, 93 F.3d at 173.
Page 7 of 19

in Subdivision Plat Applications 1 and 2 because it failed to appeal/seek judicial review
pursuant to La. R.S. 33:4780.40 and 4780.47(A). Additionally, Defendants contend that
G&H did not have a protected property right in approval of Subdivision Plat Applications 1
and 2. For the limited purpose of the instant ruling, this Court will assume there was no
waiver and that G&H has established a protected property right. Thus, the Court will
proceed to whether Defendants’ actions in relation to Subdivision Plat Applications 1 and
2 were arbitrary and capricious and without any conceivable rational basis.
Federal Substantive Due Process Claim Against the Benton-Parish MPC
G&H argues that the Benton-Parish MPC “acted arbitrarily and capriciously for two
reasons: (1) because the Benton-Parish Metropolitan Planning Commission lacked
authority to zone (or rezone) G&H’s property, thus giving a G&H a use by right, defendant’s
failure to approve the subdivision plat was arbitrary and capricious as a matter of law, and
(2) because, even if the relevant zoning ordinances were applicable, G&H had a right to
subdivide the property without a zoning change, making defendant’s denial of the first
subdivision plat arbitrary and capricious as a matter of law.” Record Document 106. As
to G&H’s first argument, this Court has previously held that the Benton-Parish MPC had
the authority to zone (or rezone) G&H’s property. See Record Documents 155 & 156
(emphasis added). G&H’s first argument is, therefore, foreclosed. Next, G&H argues that
even if the relevant zoning ordinances were applicable, it had a right to subdivide the
property without a zoning change, making Defendants’ denial of the first subdivision plat
arbitrary and capricious as a matter of law.
At the outset, this Court notes that G&H did not address the Benton-Parish MPC’s
actions with regard to Subdivision Plat Application 2 at all. Thus, the Court need not
Page 8 of 19

address the actions of the Benton-Parish MPC in the context of Subdivision Plat Application
2, as G&H’s failure to discuss such issues amounts to abandonment. See Milton v. Boise
Cascade, LLC, No. 08–1857, 2011 WL 285091, *2 (W.D.La. Jan. 25, 2011); Hargrave v.
Fibreboard Corp., 710 F.2d 1154 (5th Cir.1983); Keenan v. Tejeda, 290 F.3d 252, 262 (5th
Cir.2002). To address G&H’s argument as to Subdivision Plat Application 1, the Court
must start with the applicable zoning ordinances.
Bossier Parish Code of Ordinances, Chapter 126, Article I, Section 716 R-A
Residence-Agriculture Districts provides:
(a)

Purpose; intent. The R-A residence-agriculture districts are composed
mainly of unsubdivided lands that are vacant or in agricultural or
forestry uses, with some dwelling and accessory uses. The
regulations set forth in this section are designed to protect the
essentially open character of such districts by prohibiting the
establishment of scattered business, industrial and other uses that are
unrelated to any general plan of development and that might inhibit
the best future urban utilization of the land. It is intended that land
in the R-A districts will be reclassified to its appropriate
residential or commercial category in accordance with the
amendment procedure set forth in this article whenever such
land is subdivided into urban building sites.

(b)

Permitted uses. Only the following uses are permitted in R-A districts:
(1)

Uses by right. The following uses are permitted, subject to the
conditions specified:
...
Dwelling, one-family.
...

(c)

Building site area. Except as provided in division 3 of this article, the
minimum building site area within the R-A district shall be as follows:
(1)

One-family dwelling, 6,000 square feet.

Page 9 of 19

...
Record Document 86, Exhibit 64 at CD126:14 - 126:16 (emphasis added). “Building Site”
under Bossier Parish Code of Ordinances, Chapter 126, Article I, Section 671 is defined
as follows:
Building site means the land area occupied, or to be occupied, by a building
and its accessory buildings, including such open spaces, yards, minimum
area, off-street parking facilities and off-street truck loading facilities as are
required by this article. Every building site shall abut upon a street.
Id. at CD126:9. Bossier Parish Code of Ordinances, Chapter 126, Article I, Section
126-1161(4) states as follows:
Sec. 126-1161. Policy.
This article, including the zoning map, is based on comprehensive planning
studies and is intended to carry out the objective of a sound, stable and
desirable development. It is recognized that casual change or amendment
to this article would be detrimental to the achievement of such objective, and
therefore, it is declared to be the public policy to amend this article only when
one or more of the following conditions prevail:
...
(4)

Subdivision of land. The subdivision or imminent subdivision of open
land into urban building sites makes reclassification necessary and
desirable.

Id. at CD126:127 (emphasis added).
G&H filed Subdivision Plat Application 1 to be considered in connection with its
application to rezone the Property from R-A to R-1. The Benton-Parish MPC deemed
Subdivision Plat Application 1 moot. While not clearly articulated in its brief, it appears
G&H argues that the Benton-Parish MPC was arbitrary and capricious in deeming
Subdivision Plat Application 1 moot.
In a previous ruling, this Court held:

Page 10 of 19

Sections 126-716 and 126-1161 clearly demonstrate an intent to reclassify
R-A property when it is subdivided into urban building sites. Section 1261161 specifically provides that reclassification is necessary and desirable.
Record Document 50 at 12. During public hearings, G&H’s own attorney admitted that he
believed that Section 126-1161.4 of the Bossier Parish Code of Ordinances clearly applied
to the proposed development, thus reclassification was necessary and desirable. See
Record Document 86, Exhibit 86 at 6.

Additionally, the summary judgment record

establishes that the Benton-Parish MPC has consistently interpreted Section 716 as
requiring R-A property to be rezoned before it can be subdivided and developed into a high
density, residential development. See id., Exhibit 80 (Affidavit of Penwell).9 The deposition
testimony of Gill also establishes that G&H cannot point this Court to any high density,
residential subdivision located in a R-A zoning district. See id., Exhibit 82 (Excerpts of Gill
Deposition).
In Roundstone Development, LLC v. City of Natchez, 105 So.3d 317 (Miss. 2013),
the Supreme Court of Mississippi interpreted a provision from a City of Natchez ordinance
that is identical to Section 716(a). The court held:
A plausible interpretation of the O-L ordinance is that reclassification
could be required prior to the land being subdivided. First, the last sentence
states that reclassification is intended whenever an O-L district is subdivided
into an urban building site. It does not state that reclassification is required
per se, but it provides that reclassification is intended. Further, the phrase
whenever such land is subdivided” is ambiguous: It could mean that
reclassification should occur after the land has been subdivided, as

9

When an administrative body (such as the governing authority of a town) over a long
period of time has placed an interpretation upon a law, under Louisiana law the
interpretation of such body is entitled to great weight in the determination of the meaning
of the law. See Lieber v. Rust, 388 So.2d 836, 841 (La. App. 2nd Cir. 8/18/80), citing
Ouachita Parish School Board v. Ouachita Parish Supervisors Assoc., 362 So.2d 1138 (La.
App. 2nd Cir. 8/28/78)).
Page 11 of 19

Roundstone asserts, but it also could mean prior to or shortly before any
subdivision. Second, the ordinance states that “[t]he regulations [of O-L
districts] are designed to protect the essentially open character of the districts
by prohibiting the establishment of scattered uses that are unrelated to any
general plan of development and that might inhibit the best future urban
utilization of the land.” By requiring reclassification before a large project, the
City is able to ensure that the proposed use fits within the City’s general plan
of development and that it would not inhibit the best future urban utilization
of the land.
Local authorities’ construction of zoning ordinances is given great
weight unless their construction is manifestly unreasonable. We cannot say
that the City’s interpretation of the ordinance here was manifestly
unreasonable. And, under that interpretation, Roundstone’s site plan failed
to meet the zoning requirements. The City’s decision to deny the site plan
and require rezoning, therefore, was not improper.
Id. at 321 (internal citations omitted). While not binding, this Court finds the Roundstone
case to be particularly persuasive, as it interprets an identical ordinance. Thus, based on
the foregoing, this Court simply cannot hold that the Benton-Parish MPC’s actions were
arbitrary and capricious and without any conceivable rational basis.
Additionally, G&H argues that because Section 716 provides that one-family
dwellings are a use by right; because the individual lot sizes of its development meet the
6,000 square foot building site area requirement; and because urban building sites is
undefined, its subdivision/development classifies as a use by right. See Record Document
106. While the Court is not persuaded by this argument, it need not ultimately reach this
issue because, standing alone, even an alleged misinterpretation of a local zoning
ordinance by the Benton-Parish MPC is insufficient to support a substantive due process
claim.10 See FM Properties, 93 F.3d at 174 (“[A] violation of state law is alone insufficient

10

Defendants have filed a dispositive motion on the issue of whether G&H’s proposed use
in the subdivision applications constitutes a “use by right” under Louisiana law. Record
Document 90. The motion deals exclusively with issues of state and local zoning laws.
Page 12 of 19

to state a constitutional claim under the Fourteenth Amendment.”). As the Fifth Circuit has
explained, “the due process clause does not require a state to implement its own law
correctly, nor does the Constitution insist that a local government be right.” Id. (internal
citations omitted). Accordingly, the Benton-Parish MPC’s motion (Record Document 88)
seeking dismissal of G&H’s federal substantive due process claims relating to Subdivision
Plat Applications 1 and 2 is GRANTED.
Federal Substantive Due Process Claim Against the Board of Adjustment
G&H argues that the Board of Adjustment “acted arbitrarily and capriciously for two
reasons: (1) because the Benton-Parish Metropolitan Planning Commission lacked
authority to zone (or rezone) G&H’s property, thus giving a G&H a use by right, defendant’s
failure to approve the subdivision plat was arbitrary and capricious as a matter of law, and
(2) because, even if the relevant zoning ordinances were applicable, G&H had a right to
subdivide the property without a zoning change, making defendant’s denial of the first
subdivision plat arbitrary and capricious as a matter of law.” Record Document 107 at 4
(emphasis added). Again, this Court has now held that Defendants had the authority to
zone (or rezone) G&H’s property. See Record Documents 155 & 156. Thus, G&H’s first
argument is foreclosed.
G&H’s second argument is limited to the first subdivision plat. G&H has admitted
that it sets forth no allegations against the Board of Adjustment regarding Subdivision Plat
Application 1. See Record Document 89-1 at ¶ 14; Record Document 107-1 at ¶ 14.
Accordingly, the Board of Adjustment’s motion (Record Document 89) seeking dismissal

See id. Depending upon the outcome of G&H’s federal substantive due process claims,
the Court will consider whether to exercise supplemental jurisdiction over any remaining
state law claims, including those addressed in Record Document 90.
Page 13 of 19

of G&H’s federal substantive due process claims relating to Subdivision Plat Applications
1 and 2 is GRANTED.
Federal Substantive Due Process Claim Against the Police Jury and the Parish
G&H argues that the Police Jury “acted arbitrarily and capriciously for two reasons:
(1) because the Benton-Parish Metropolitan Planning Commission lacked authority to zone
(or rezone) G&H’s property, thus giving a G&H a use by right, defendant’s failure to
approve the subdivision plat was arbitrary and capricious as a matter of law, and (2)
because, even if the relevant zoning ordinances were applicable, G&H had a right to
subdivide the property without a zoning change, making defendant’s denial of the first
subdivision plat arbitrary and capricious as a matter of law.” Record Document 110 at 3.
G&H also argues that its “substantive due process rights relating to Subdivision [Plat]
Application 2” have been violated because Defendants have refused to recognize that the
application has been approved as a matter of law.” Id. at 9.11
Again, this Court has held that Defendants had the authority to zone (or rezone)
G&H’s property. See Record Documents 155 & 156. Thus, G&H’s first argument is
foreclosed. Next, G&H appears to argue that the Police Jury was arbitrary and capricious
in deeming Subdivision Plat Application 1 moot. Again, for the reasons set forth above in
relation to the Benton-Parish MPC, this Court simply cannot hold that the Police Jury’s
actions in deeming Subdivision Plat Application 1 moot were arbitrary and capricious and
without any conceivable rational basis.

11

G&H does not specifically identify the Defendant to which this argument applies.
However, the argument is advanced in G&H’s opposition to the motion filed by the Police
Jury and the Parish. As will be discussed infra, it appears this argument is more
appropriately directed towards the Benton-Parish MPC.
Page 14 of 19

It also appears that G&H contends that the Police Jury’s determination that it did not
have jurisdiction to hear G&H’s appeal from the Board of Adjustment related to Subdivision
Plat Application 2 was arbitrary and capricious. The only contact the Police Jury had with
Subdivision Plat Application 2 was the March 6, 2013 hearing. See Record Document 86,
Exhibit 88 (Minutes). Pursuant to Section 4780.47(A), the Police Jury concluded that it did
not have jurisdiction to hear G&H’s appeal from the Board of Adjustment, as the statute
references “the district court of the parish in which the property affected is located.” La.
R.S. 33:4780.47(A). The merits of G&H’s Subdivision Plat Application 2 were never
presented to the Police Jury. Thus, based on these undisputed facts, this Court is not
convinced that G&H has met its burden to go beyond the pleadings and designate specific
facts showing that there is a genuine dispute for trial relating to the actions of the Police
Jury regarding Subdivision Plat Application 2. G&H has failed to demonstrate that the
actions of the Police Jury were arbitrary and capricious and without any conceivable
rational basis.
Finally, G&H contends that its “substantive due process rights relating to Subdivision
Plat Application 2 were violated because Defendants have refused to recognize that the
application has been approved as a matter of law. This argument is based on G&H’s
contention that it “submitted” Subdivision Plat Application 2 to Penwell on November 9,
2012 and the Benton-Parish MPC failed to approve or disapprove the application within 45
days, as required by Act 558. See Record Document 110 at 10-11.12 Therefore, G&H

12

Article 3, Section 3 of Act 558 provides:
The Commission shall approve or disapprove a plat within forty-five days
after the submission thereof; otherwise such plat shall be deemed to have
Page 15 of 19

argues that the application was deemed to have been approved and asks this Court to
recognize that approval.
The Court once again references its previous ruling relating to Penwell, wherein it
stated:
Based upon her belief “that an application for any major subdivision of R-A
land must be accompanied by an application for rezoning,” her refusal to
accept G&H’s second subdivision application falls within the scope of her
duties as Zoning Administrator. Record Document 1-2 at 2. She was
specifically tasked with carrying out the duty of administering and enforcing
provisions as the officer in charge. See id. at CD126:124-CD126:125.
Record Document 50 at 9 (emphasis added). This Court found Penwell’s rejection of
Subdivision Plat Application 2 to be objectively reasonable. See id. at 10-13. Based upon
Penwell’s rejection, this Court believes that Subdivision Plat Application 2 was never
properly submitted to the Benton-Parish MPC.
Additionally, Louisiana courts have rejected the “deemed to have been approved”
argument advanced by G&H, finding that a public hearing is always necessary before final
approval of plats. In Brownlee Dev. Corp. v. Taylor, 438 So.2d 618 (La. Ct. App. 1983), the
Louisiana Second Circuit Court of Appeal held that the MPC’s approval of a plat without a
public hearing was invalid and the court refused to issue a mandamus ordering the city
engineer to approve a plat. The court discussed the 45 day period referenced in Act 558:
The general law provides that a planning commission shall approve a plat
within 60 days after the plat is submitted for approval and that no action can
be taken without a hearing. La. R.S. 33:113. The special law under which
the Bossier MPC was created provides that a plat shall be approved or

been approved and a certificate to that effect shall be issued by the Planning
Commission on demand.
Record Document 86, Exhibit 66 at 1031.
Page 16 of 19

disapproved within 45 days after submission and that no plat shall be
disapproved without affording a public hearing. Art. 3, § 3. The special law
neither requires nor forbids a hearing before a plat can be approved.
Id. at 620. In declining to issue the mandamus, the court held that irrespective of the
language in Act 558, the MPC “has the other and additional duty and responsibility to the
public to require and advertise a public hearing before approving a subdivision plat.” Id.
at 621. Thus, Louisiana law requires a public hearing to be held before G&H’s Subdivision
Plat Application 2 can be deemed approved, regardless of whether 45 days have passed.13
Accordingly, the motion filed by the Police Jury and the Parish (Record Document 92)
seeking dismissal of G&H’s federal substantive due process claims relating to Subdivision
Plat Applications 1 and 2 is GRANTED.

13

In Old Jefferson Civic Ass’n, Inc. v. Planning Comm’n for City of Baton Rouge & E. Baton
Rouge Parish, 364 So. 2d 193 (La. Ct. App. 1978), the court of appeal reasoned:
[W]e concur with the opinion of the trial judge. . . . It is the opinion of this
Court that there is a clear and specific duty on the part of the Planning
Commission to afford a hearing on a plat submitted to it before acting upon
that plat by granting it final approval. The Commission may have discretion
to approve or disapprove the plat, but it has no discretion . . . not to hold a
hearing on the plat. Plaintiff is entitled to the issuance of a writ of mandamus
commanding the Planning Commission, the Council, and the City-Parish to
hold public hearings prior to granting final approval to preliminary plats of
property in the Third and Fourth Filings of Old Jefferson Subdivision and the
proposed Jefferson Park Development. It is strenuously argued by
appellants that no hearing is mandated under LSA-R.S. 33:113, since by
inactivity final approval is awarded by operation of law. The obvious
intention of that section providing for approval by operation of law is
to prohibit disapproval by the Planning Commission’s inactivity. . . .
The Planning Commission cannot grant approval or disapproval without such
a hearing and the trial court has the power to issue a writ of mandamus to
compel the Commission to hold such hearings.
Id. at 196 (emphasis added). Based on this rationale, G&H could seek, at most, a
mandamus requiring the Benton-Parish MPC to hold a public hearing on Subdivision Plat
Application 2.
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Substantive Due Process Claims under the Louisiana Constitution
Defendants also seek dismissal of G&H’s substantive due process claims under the
Louisiana Constitution. Because the Louisiana Constitution’s guarantee of due process of
law “embodies the fundamental fairness guarantees inherent in its federal counterpart,”
G&H’s state substantive due process claims are likewise DISMISSED. See Dupree v.
Belton, No. 10-1592, 2013 WL 701068, at *6 (W.D. La. Feb. 26, 2013), citing In re C.B., 972783 (La. 3/4/98), 708 So.2d 391, 397.
All Remaining State Law Claims
All of G&H’s federal claims have been dismissed; thus, no federal question remains
before this Court. The remaining state law claims relate to purely state and local land use
issues. The Court must now exercise its discretion whether to exercise supplemental
jurisdiction over G&H’s remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“The
district courts may decline to exercise supplemental jurisdiction over a claim under
subsection(a) if . . . (3) the district court has dismissed all claims over which it has original
jurisdiction”). “When a court dismisses all federal claims before trial, the general rule is to
dismiss any pendent claims.” Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).
“However, the dismissal of the pendent claims should expressly be without prejudice so
that the plaintiff may refile his claims in the appropriate state court.” Id. Accordingly,
G&H’s remaining state law claims are DISMISSED WITHOUT PREJUDICE to allow G&H
to refile in state court.14

14

This dismissal includes the state and local land use issues raised in Defendants’ Record
Document 90. Thus, Defendants’ Motion for Summary Judgment Addressing Claim IV
(Record Document 90) is hereby DENIED AS MOOT, as the Court declines supplemental
jurisdiction over the remaining state law claims and the issue of whether G&H’s proposed
Page 18 of 19

III.

CONCLUSION.
Based on the foregoing analysis, the Court finds that G&H’s federal and state

substantive due process claims relating to Subdivision Plat Applications 1 and 2 fail, as the
actions of Defendants were not arbitrary and capricious and without any conceivable
rational basis. Additionally, this Court declines to exercise supplemental jurisdiction over
G&H’s remaining state law claims.
Accordingly,
IT IS ORDERED that Defendants’ dispositive motions (Record Documents 88, 89
& 92) seeking dismissal of G&H’s federal and state substantive due process claims relating
to Subdivision Plat Applications 1 and 2 be and are hereby GRANTED.
IT IS FURTHER ORDERED that this Court declines to exercise supplemental
jurisdiction over G&H’s remaining state law claims and such claims be and are hereby
DISMISSED WITHOUT PREJUDICE to allow G&H to refile in state court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment
Addressing Claim IV (Record Document 90) be and is hereby DENIED AS MOOT, as the
motion addresses state and local land use issues over which this Court declines
supplemental jurisdiction.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 27th day of May, 2015.

use in the subdivision applications constitutes a “use by right” under Louisiana law is more
appropriately decided in state court.
Page 19 of 19