Gap Farms L L C v. Arcadia et al

Filing 25

MEMORANDUM RULING re 18 AMENDED MOTION for Preliminary Injunction filed by Gap Farms L L C. Signed by Chief Judge S Maurice Hicks, Jr on 4/16/2018. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
GAP FARMS, L.L.C.

CIVIL ACTION NO. 17-0598

VERSUS

JUDGE S. MAURICE HICKS, JR.

TOWN OF ARCADIA, ET AL.

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is Plaintiff Gap Farms, LLC’s (“Gap Farms”) “Amended Motion
for Preliminary Injunction” (Record Document 18) prohibiting Defendants, the Town of
Arcadia (“Arcadia”), the Arcadia Town Council (the “Council”), and the Mayor of Arcadia,
Jesse Eugen Smith, Jr. (“Mayor Smith”) (collectively the “Defendants”), from (1) refusing
to issue a permit to Gap Farms for the construction of a fence or other barrier on its
property and (2) issuing a building permit to any non-owner to construct a concrete
driveway across a portion of Gap Farms’ property. 1 For the reasons contained herein,
Gap Farms’ Motion is DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
This suit arises out of certain actions taken by Mayor Smith on behalf of Arcadia
and as authorized by the Council. The property in question is located north of Interstate
20 and adjacent to Highway 151. See Record Document 1 at 3. In 2009, Gap Farms
applied for and was granted permission by the Town of Arcadia to construct a road
traversing its property; the plat and road dedication were approved by the Mayor and
recorded in the conveyance records in late December that same year. See id. at 2-3. In
2010, Gap Farms constructed a road (“Gap Farms Road”) that runs parallel to Interstate

1

Although Gap Farms’ Motion does not specifically pray for a preliminary injunction prohibiting Defendants
from issuing a building permit to any non-owner to construct a driveway, Gap Farms requests such an
injunction in its accompanying memorandum. See Record Document 18-6 at 5, 15, and 20.

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20 and intersected Highway 151. See id. at 3. In exchange, Gap Farms statutorily
dedicated “the road rights of way and utility servitudes showed hereon to public use” on
December 28, 2009. See Record Document 18-3. This dedication, issued pursuant to La.
R.S. 33:5051(7), was for the “use of said property for road and utility purposes only,
reserving unto said owners, its successors and assigns, the full fee of said property in full
ownership including, but not limited to, all oil, gas and other minerals on, in, under or that
which may be produced therefrom.” Id.
Gap Farms claims it intentionally reserved a strip of land on the northern boundary
of its property that was not burdened by the road servitude placed upon Gap Farms Road,
and which is only partially burdened by the dedicated utility servitude. See Record
Document 1 at 3. It is this strip of land that is at issue (the “Boundary Strip”). The case at
hand arises from Mayor Smith, acting in his official capacity, denying a permit that Gap
Farms submitted to construct a fence or barrier on this Boundary Strip. See Record
Document 23-2 at 3. This denial was issued in response to concerns regarding the
public’s health and safety should such an obstacle be placed on this property, and
potential liabilities that might arise should something occur on this land, which is burdened
by a utility servitude and which exposes Arcadia to such liability. See id. It was also issued
on the basis that Arcadia has the exclusive right to make sure that any use of the property
affected by the servitude is commensurate with its use of all servitudes within Arcadia,
and that no action is permitted which would establish a precedent which could create
improper use of other properties within Arcadia which are impacted by a servitude. See
id. The instant matter also involves Arcadia giving Kiran of Monroe, L.L.C. (“Kiran”), an
adjacent landowner of Gap Farms, a “verbal permit” to construct a concrete driveway

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across a portion of the Boundary Strip in order to provide access to Gap Farms Road.
See Record Document 18-6 at 8.
On May 3, 2017, Gap Farms filed a Motion and Memorandum for Preliminary
Injunction, asserting violations of its substantive due process rights under the United
States Constitution and claims arising under 42 U.S.C. § 1983 allegedly perpetrated by
Defendants. See Record Document 1-2. In particular, Gap Farms alleged that Defendants
had refused to issue a permit to it so that it might construct a fence or other barrier on a
piece of property subject to a utility servitude dedicated to Arcadia but owned exclusively
by Gap Farms. See id. After the Court issued a Memorandum Order (Record Document
13) directing Plaintiff to file a new motion for preliminary injunction setting forth the
elements required for the issuance of such an injunction as dictated by the Fifth Circuit
Court of Appeals, Gap Farms submitted an Amended Motion and Memorandum in
Support of a Preliminary Injunction. 2 See Record Documents 18 and 18-6. Defendants
timely filed their opposition. See Record Document 23. Thus, the motion is ripe for
decision.

2

These Motions and Memoranda for Preliminary Injunction were filed separately from proceedings taking
place before a Louisiana state court, in which Kiran sued Gap Farms in an effort to secure a preliminary
injunction and declaratory judgment allowing it the ability to construct the aforementioned concrete
driveway. See Record Document 7-2. Kiran brought this suit in December 2015, and it concerns the same
parcel of land that is at issue in the present case. See id. Kiran wished this driveway to connect its gas
station to the Gap Farms Road for easier accessibility to the public. See id. As a result of this request for
injunction, Gap Farms submitted an answer and reconventional demand asserting inadequate
consideration to build such a road, as well as lack of entitlement to a servitude of passage. See id. at 16.
Accordingly, Gap Farms sought a preliminary and permanent injunction to prevent Kiran’s encroachment
and trespass upon its lands, as well as a declaratory judgment of its rights and interests, as well as alleged
damages. See id. The state court has yet to render a decision on this matter.

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LAW AND ANALYSIS
A. Preliminary Injunction Standard
The grant or denial of a preliminary injunction lies in the discretion of the district
court. See Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
However, such discretion is not unbridled and must be exercised “in light of what [the Fifth
Circuit has] termed the four prerequisites for the extraordinary relief of preliminary
injunction.” Id. (internal citation and quotation omitted). Under this standard, a plaintiff
seeking preliminary injunctive relief must demonstrate: “(1) a substantial likelihood that
plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable
injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs
the threatened harm the injunction may do to defendant, and (4) that granting the
preliminary injunction will not disserve the public interest.” Id. “A preliminary injunction is
an extraordinary remedy which courts grant only if the movant has clearly carried the
burden as to all four elements.” Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459,
464 (5th Cir. 2003).
When considering these prerequisites, the district court must remember that a
preliminary injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly carries the burden of persuasion. See Canal Auth. of State of Fla., 489
F.2d at 573; House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180 (5th Cir. 1996) (“We
have frequently cautioned that ‘[a] preliminary injunction is an extraordinary remedy,’ and
‘[t]he decision to grant a preliminary injunction is to be treated as the exception rather
than the rule’”). The chief aim for applying this extraordinary remedy is to preserve the

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court's ability to render a meaningful decision on the merits. See id. The Fifth Circuit has
further reasoned:
Although the fundamental fairness of preventing irremediable harm to a
party is an important factor on a preliminary injunction application, the most
compelling reason in favor of (granting a preliminary injunction) is the need
to prevent the judicial process from being rendered futile by defendant's
action or refusal to act. Thus only those injuries that cannot be redressed
by the application of a judicial remedy after a hearing on the merits can
properly justify a preliminary injunction.
Canal Auth. of State of Fla., 489 F.2d at 573 (internal citation omitted).
Many times, courts loosely state that the purpose of a preliminary injunction is to
preserve the status quo. See id. at 576. However, there is no “particular magic” in the
phrase. Id. Instead, the focus should be “to prevent irreparable injury so as to preserve
the court's ability to render a meaningful decision on the merits.” Id. While “it often
happens that this purpose is furthered by preservation of the status quo,” such is not
always the case. Id. Thus, the focus of the court's inquiry must be prevention of injury by
a proper order, not merely preservation of the status quo. See id.
B. Analysis
Gap Farms seeks a preliminary injunction that prohibits Defendants from (1)
refusing to issue a permit to Gap Farms for the construction of a fence or other barrier on
its property and (2) issuing a building permit to Kiran to construct a concrete driveway
across a portion of Gap Farms’ property. See Record Document 18-6 at 1-2. Gap Farms’
Motion must fail because it has not shown a substantial likelihood of success on the merits
for either claim, the first element necessary to obtain a preliminary injunction. See Canal
Auth. of State of Fla., 489 F.2d at 572. First, Defendants have shown that Arcadia’s denial
of Gap Farms’ permit is rationally related to a legitimate governmental interest – ensuring
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the health and safety of the motoring public and managing land use. Next, Louisiana law
has previously held that municipalities that are recipients of an almost identical dedicated
servitude have authority to grant permits across the utility servitude, even if the dedication
did not specifically grant such authority. See Melancon v. Giglio, 96-2507 (La. App. 1 Cir.
3/13/98), 712 So. 2d 535.
1.

Defendants’ Denial of Gap Farms’ Permit Request

Gap Farms argues it is likely to succeed on the merits because the Defendants’
“absolute prohibition” of its use of the disputed tract of land “is a violation of [its]
substantive property rights that is tantamount to a condemnation of such property … and
is a blatant violation of [its] due process rights to use, enjoy and protect its property.”
Record Document 18-6 at 16. When addressing whether a government’s actions
comprise a due process violation in which it has deprived a person of “life, liberty, or
property without due process of law,” a rational basis standard is applied. U.S. Const.
Am. XIV; Texas Manufactured Hous. Ass'n, Inc. v. City of Nederland, 101 F.3d 1095,
1106 (5th Cir. 1996). Government action is said to comport with substantive due process
if the action is “rationally related to a legitimate government interest.” FM Properties
Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996). A deprivation is
unconstitutional only if it is “clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.” Id., quoting Vill. of Euclid
v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114 (1926). The Supreme Court has
previously held that it will not overturn government action unless it “is so unrelated to the
achievement of any combination of legitimate purposes that [the court] can only conclude

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that the [government’s] actions were irrational.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
84, 120 S.Ct. 631, 646 (2000).
Gap Farms argues Defendants’ actions serve no rational basis to a legitimate
government interest and that Defendants acted arbitrarily and capriciously by refusing to
issue a permit for it to be build a fence or other barrier simply because Defendants believe
the disputed tract of land (or a portion thereof) is burdened by a utility servitude. See
Record Document 18-6 at 16-17. Gap Farms also points to Mayor Smith’s deposition to
show the denial was arbitrary and capricious. See Record Document 18-6 at 11.
However, Defendants have provided evidence that Arcadia’s denial of Gap Farms’ permit
request was not simply because Defendants believe the disputed tract is burdened by a
utility servitude; but instead, was rationally related to a legitimate government interest –
ensuring the health and safety of the motoring public.
In his affidavit, Mayor Smith, who acted in his official capacity as mayor in denying
Gap Farms’ permit request, states the denial was “based upon significant concern that a
fence or other barriers placed upon this strip of property constitutes a public safety
hazard.” Record Document 23-2 at 3. Mayor Smith proceeds to state that “either a fence
or the concrete parking barriers present a hazard to motorists traveling on this roadway,
as the area at issue is on or along the shoulder of the roadway and is therefore a safety
issue for the motoring public.” Id. Mayor Smith cautions that if Gap Farms’ fence or other
barriers were constructed, motorists “who might travel off the paved portion of the
roadway [would be] unable to have a clear zone to recover and return to the roadway.”
Id. The Court finds these reasons, at this stage of the litigation, are sufficient to establish
a rational relationship to legitimate governmental interests. See Simi Inv. Co., v. Harris

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Cnty., 236 F.3d 240, 251 (5th Cir. 2000) (a deprivation will be sustained if “the question
is at least debatable” “whether a rational relationship exists between the [policy or
decision] and a conceivable legitimate objective”).
Contrary to Gap Farms’ contention, Mayor Smith’s deposition actually supports
the Defendants’ argument that the denial was not arbitrary and capricious, but rather
rationally related to a legitimate government interest – managing land use. There, Mayor
Smith, when asked why he denied the request, explained “I never heard of giving a fence
on [land burdened by a utility servitude] – we’ve never – and we don’t have anything to
build over our utilities right of way or in the way of it, where it’s going to cost us problems.”3
Record Document 18-4 at 4. In denying Gap Farms’ permit request, Mayor Smith sought
to protect the “exclusive right of Arcadia to ensure that any use of the property affected
by the servitude is commensurate with its use of all servitudes within [Arcadia], and that
no action is permitted which would establish a precedent which would create improper
use of other properties within [Arcadia] which are impacted by a servitude.” Record
Document 23-2 at 3. As Mayor Smith pointed out in his deposition and confirmed in his
affidavit, there are no fences located on any property encumbered by a servitude
administered by Arcadia. See Record Document 18-4 at 4; Record Document 23-2 at 3.
Managing land use is a legitimate governmental interest. See TexCom Gulf Disposal, LLC
v. Montgomery Cty., Tex., 2014 WL 2931943, *10 (S.D. Tex. 2014), citing Persyn v. U.S.,
138 F.3d 951, *1 (5th Cir. 1998) (legitimate government interests include protecting health
and safety, controlling economic and land development, stabilizing current uses of land,
and promoting quality of life). The Court finds the evidence submitted by Defendants

3

Later in his deposition, Mayor Smith stated a “couple hundred feet of concrete” on top of the utility servitude
would not impede access to the utility servitude. See Record Document 1804 at 6.

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sufficient to rebut Gap Farms’ claim that there is a substantial likelihood it will be
successful on the merits as it pertains to the Defendants’ denial of the permit request.
Therefore, issuance of a preliminary injunction is not proper at this time.
2.

Defendants’ Issuance of a Building Permit to Kiran

Gap Farms believes Defendants, owners only of a utility servitude, have no
authority to authorize Kiran, a non-owner, to construct a driveway to and from Gap Farms
Road; therefore, Defendants’ decision to allow Kiran to trespass is arbitrary and
capricious. See Record Document 18-6 at 16-17. However, a Louisiana state court has
previously interpreted an almost identical dedication of a servitude for public use and held
a municipality had the authority to grant permits across the servitude, even if the
dedication did not specifically grant such authority. See Melancon, 712 So. 2d 535.
Article 697 of the Louisiana Civil Code states, “The use and extent of such
servitudes are regulated by the title by which they are created, and, in the absence of
such regulation, by the following rules.” Here, Gap Farms statutorily dedicated “the road
rights of way and utility servitudes showed hereon to public use.” An instrument granting
a right of way may contemplate either the creation of a servitude of passage or the transfer
of the ownership of a strip of land. See A.N. Yiannopoulos, 3 Predial Servitude § 130, in
4 Louisiana Civil Law Treatise (4th ed. 2004); Webb v. Franks Inv. Co., 47,321 (La. App.
2 Cir. 10/29/12), 105 So. 3d 764, 769. Since it is undisputed that Gap Farms retained full
ownership of the land dedicated, the Court considers Gap Farms’ dedication of the “road
rights of way” a servitude of passage. Id. Article 705 of the Louisiana Civil Code governs
servitudes of passage, and states:
The servitude of passage is the right for the benefit of the dominant estate
whereby persons, animals, utilities, or vehicles are permitted to pass
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through the servient estate. Unless the title provides otherwise, the extent
of the right and the mode of its exercise shall be suitable for the kind of
traffic or utility necessary for the reasonable use of the dominant estate.
The Court must now determine the intentions of the servitude, including the scope and
contemplated use of the property. Gap Farms contends that the dedication severely
restricted the interests it conveyed to the public and there was no provision that allowed
the disputed tract of land to be utilized for ingress or egress by Arcadia or anyone else.
See Record Document 18-6 at 11. It further argues if there is any ambiguity about the
instrument, the instrument must be construed in favor of the owner of the land. See id. at
14, citing La. C.C. art. 753.
The First Circuit Court of Appeals addressed these issues in the case of Melancon,
712 So.2d 535. In this case, the Melancons wished to build a driveway across land
belonging to Westgate; this unpaved land was within a swath of property Westgate had
statutorily dedicated for public use and utilities in order to build Westgate Boulevard. See
id. at 537-38. The Melancons received parish permits to build this driveway, and Westgate
sought to block this construction. See id. at 538.
According to the court, while the public is entitled to full unhindered and
unobstructed use of a servitude of public passage, the extent and use of a servitude are
regulated by the act which created it. See id. at 540, citing La. C.C. art. 697. If the new
use was more extensive or different than the dedication, then the Melancons would have
been required to obtain the consent of the servitude owner, landowner, and potentially
obtain an additional servitude. See id., citing Louisiana Power & Light Company v. Dileo,
79 So.2d 150, 155 (La. App. 1 Cir. 1955). The court looked at the dedicatory language of
the act, which granted to the public a servitude for underground utilities and public

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passage. See id. It then set about to determine whether the construction of a driveway
was incompatible with “the nature and extent of the servitude granted by Westgate.” Id.
Because the dedicatory language “established a servitude of public passage over the
entire 60-foot wide strip of land, not just the area that was subsequently paved for
vehicular travel,” and though the unpaved area was used only for utilities, the court
determined that the owners of the subdivision used this land to access paved streets to
the interior of the subdivision made by driveways crossing the unpaved portion of the
servitude, eclipsing the width of the portions ultimately paved. Id. Westgate did not
express an intention that certain portions of the dedicated land be used differently, and it
did not specifically reserve any portion of this strip adjacent to the construction. See id.
The court determined that customary passage by the public applied to the dedication, and
that a driveway was consistent with the nature and extent of the existing servitude. See
id. Therefore, the court found a driveway “would not impose an entirely different burden
on the land than that granted by the developer” and thus extended to the use proposed
by the Melancons. Id.
Here, just as in Melancon, the dedication specifically contemplated a servitude of
passage to the entire land, rather than just the subsequently paved portion. Similarly, Gap
Farms did not express an intention that certain portions of the dedicated land be used
differently, and, contrary to its assertions, it did not specifically reserve any portion of this
strip adjacent to the construction. Since the customary passage by the public applies to
entire tract of land dedicated, a driveway is consistent with the nature and extent of the
pubic passage servitude. Because of the similarities that exist in the acts of dedication
found in Melancon and in the instant matter, the Court is heavily persuaded by the state

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court’s ruling. As the scope of use comprises the main issues set forth in this claim, and
based upon prior treatment of questions regarding scope of use in Melancon, the Court
finds the Defendants have sufficiently rebutted Gap Farms’ claims of a substantial
likelihood of success on the merits regarding this claim. Accordingly, Gap Farms has not
satisfied the first element required to obtain a preliminary injunction.
CONCLUSION
The Court finds that Gap Farms cannot show a substantial likelihood of success
on the merits of its request for a preliminary injunction. As a substantial likelihood of
success on the merits of the permanent injunction is a necessary element Gap Farms
must prove to obtain a preliminary injunction, Gap Farms’ “Amended Motion for
Preliminary Injunction” (Record Document 18) is DENIED.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 16th day of April, 2018.

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