The opinion
THE TOURO BOULIGNY * NO. 2023-C-0583
ASSOCIATION & RELLA
ZAPLETAL, INDIVIDUALLY, *
AND IN HER OFFICIAL COURT OF APPEAL
CAPACITY AS PRESIDENT *
OF THE TOURO BOULIGNY FOURTH CIRCUIT
ASSOCIATION *
STATE OF LOUISIANA
VERSUS *******
ORLEANS PARISH SCHOOL
BOARD & DR. AVIS
WILLIAMS, IN HER
CAPACITY AS
SUPERINTENDENT OF
ORLEANS PARISH SCHOOL
BOARD
APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-04914, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Dale N. Atkins)
Michael R. Dobson
FISHMAN HAYGOOD L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170-4600
COUNSEL FOR RELATORS
Stephen Gele
Smith & Fawer, L.L.C.
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170
COUNSEL FOR RESPONDENTS
WRIT GRANTED;
RELIEF DENIED
October 11, 2023
RML
This is a suit by a neighborhood association—the Touro Bouligny
SCJ
Association and Rella Zapletal, in her individual capacity and in her official
DNA
capacity as the Touro Bouligny Association’s President (collectively the
“Association”)—seeking injunctive, declaratory, and mandamus relief.1 The
Association filed this suit against the Orleans Parish School Board (“OPSB”).2
From the trial court’s August 7, 2023 judgment denying its summary judgment
motion, OPSB filed this writ application seeking supervisory review. For the
following reasons, we grant OPSB’s writ, but deny relief.3
1 The petition also includes a prayer for damages and attorney’s fees.
2 The Association also named Dr. Avis Williams, in her capacity as Superintendent of Orleans
Parish School Board (“Dr. Williams”), as a defendant. For ease of discussion, we refer to the
defendants—OPSB and Dr. Williams—singularly as the OPSB.
3 As mandated by La. C.C.P. art. 966(H), we provided the parties an opportunity to request oral
argument and considered OPSB’s request for oral argument. But, after careful consideration, we
found oral argument unnecessary under the facts of this case and elected to exercise our
discretion to decide this writ on the written briefs.
1
I.
A trial court’s ruling on a summary judgment motion is reviewed using a de
novo standard. Planchard v. New Hotel Monteleone, LLC, 21-00347, p. 2 (La.
12/10/21), 332 So.3d 623, 625 (citations omitted). An appellate court uses the
same standards and rules as a trial court in deciding whether summary judgment is
appropriate—“whether there is any genuine issue of material fact, and whether the
movant is entitled to judgment as a matter of law.” Planchard, 21-00347, pp. 2-3,
332 So.3d at 625.
A summary judgment motion “shall be granted if the motion, memorandum,
and supporting documents show that there is no genuine issue as to material fact
and that the mover is entitled to judgment as a matter of law.” La. C.C.P.
art. 966(A)(3).4 A genuine issue of fact is one as to which reasonable persons could
disagree; if reasonable persons could reach only one conclusion, there is no need
for trial on the issue, and the granting of summary judgment is appropriate. Smith
v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730,
751 (citation omitted). A material fact is one that “might affect the outcome of the
suit.” Id. Whether a fact is material must be determined based on the applicable
substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir.
5/10/17), 219 So.3d 1265, 1270 (citation omitted).
4 The Louisiana Legislature amended La. C.C.P. art. 966, effective August 1, 2023. The
amendment to this article, however, is not applicable to this appeal.
2
II.
The Association’s principal claim is for injunctive relief—an injunction
blocking a proposed property swap between OPSB and the Housing Authority of
New Orleans (“HANO”). OPSB plans to swap three of its now-vacant school
properties. In exchange for its trio of properties, OPSB is to receive from HANO a
vacant property that adjoins the Booker T. Washington High School (the “BW
Cooper Property”).
The Association’s primary objection to the land swap is its desire to
maintain the status of one of the trio of properties OPSB plans to swap—the
McDonough No. 7 property (the “McDonogh Property”)—as a school.5 The other
two properties the OPSB plans to swap are the Derham and Chester properties.6
According to the Association, the McDonogh Property appraised for $4,540,000 in
August 2022; the Derham property appraised for $495,000 in December 2018; and
the Chester property appraised for $375,000 in December 2014. Together, the trio
of OPSB properties appraised for $5,410,000. In contrast, HANO’s BW Cooper
5 The McDonogh Property is a historic school building constructed in 1877. When the
Association’s petition was filed, the McDonogh Property was leased and occupied by the
Audubon Charter School (“Audubon”). Thereafter, at the end of the 2020-21 school year,
Audubon vacated the property. At the time of the summary judgment hearing, the McDonogh
Property was vacant.
6 A fourth property was mentioned in connection with the proposed land swap—the Jordan
property. The record is unclear as to status of the Jordan property is relation to the proposed
property swap.
3
Property appraised in August 2021 for $3,225,000.7 The gap in appraised value
between the exchanged properties is in excess of two million dollars.8
The gap in appraised value of the properties is the basis for the Association’s
claim that the proposed property swap violates the constitutional prohibition
against donating public property contained in La. Const. art. VII, § 14(A).9
According to the Association, the values of the properties proposed to be swapped
must be substantially similar to avoid running afoul of the constitutional
prohibition. The Association argued that the proposed exchange by OPSB of the
McDonogh Property and two other properties for the BW Cooper Property—an
environmentally contaminated, valueless, vacant lot—constitutes a constitutionally
prohibited donation.
Conversely, OPSB contended that the proposed property swap was
constitutionally valid. In support, OPSB contended that La. Const. art. VII, § 14
itself includes several exceptions.10 OPSB further contended that the “value” to the
7 In its original petition, the Association alleged that in 2018 the BW Cooper Property was
appraised for $2.8 million dollars, while the McDonogh Property was appraised at $3.55 million
dollars.
8 The McDonogh Property is a historic school building—constructed in 1877. When the petition
was filed, the McDonogh Property was leased and occupied by the Audubon Charter School
(“Audubon”). Audubon vacated the Property at the end of the 2020-21 school year.
9 La. Const. art. VII, § 14(A) provides:
Except as otherwise provided by this constitution, the funds, credit,
property, or things of value of the state or of any political subdivision shall not be
loaned, pledged, or donated to or for any person, association, or corporation, public
or private.
10 One exception is for “social welfare” expenditure set forth in La. Const., art. VII, § 14(B),
which specifically authorizes the use of public funds for programs of social welfare. OPSB cites
to an Attorney General opinion as an example of recreation space for children being a “social
welfare” expenditure authorized by the Louisiana Constitution. But, the Attorney General’s
opinion does not relate to a school board’s transfer of property. Instead, it was in response to a
4
OPSB to satisfy the requirements of the Louisiana Constitution can—and, here,
was agreed to—come from multiple sources other than the appraised values of the
underlying properties and that the agreed-upon consideration for the exchange is
indisputably sufficient. The gap in appraised values, according to OPSB, was met
by the remediation costs expended—or to be expended—by HANO, the intangible
value it was to receive, or both. In support of its position, OPSB cited the affidavit
of Tiffany Delour, OPSB’s Chief Operations Officer, who attested as follows:
• Currently, students enrolled at Booker T. Washington High School
must walk or otherwise travel several blocks to access the high school’s
currently available athletics facilities. The OPSB will receive
significant value from having athletic facilities for the high school
adjacent, and easily accessible, to Booker T. Washington. The OPSB
will also receive significant value from the additional parking and storm
water management that could be installed on the BW Cooper property
as well as the aesthetic and other intangible value from having the
otherwise-vacant and undeveloped BW Cooper property developed for
school purposes.
• The current owner of the BW Cooper property, [HANO], has agreed
since 2018 to perform environmental remediation and associated work
on the BW Cooper property for purposes of preparing the BW Cooper
property for the OPSB’s intended use (i.e., to remediate the property to
educational, rather than [United States Department of Housing and
Urban Development (“HUD”)], standards). As communicated to the
OPSB by HANO in 2018, the value of the remediation work agreed by
HANO to be performed for the benefit of the OPSB’s intended use
exceeds $4 million.
request from the City of Iberia “regarding the use of public funds to assist the children that
participate in the little league baseball program” that was operating in the city. La. Att’y Gen.
Op. No. 02-0128 (May 29, 2002). Furthermore, with regard to exchanges of school properties,
several Attorney General opinions have observed that when transferring surplus school property,
Louisiana law requires that the property is appraised and that fair market value is received
pursuant to La. Const., art. VII, § 14. See La. Op. Att’y Gen. No. 14-0005 (Apr. 30, 2014)
(observing that “to comply with this particular constitutional provision, the City and Parish must
ensure that the value of the exchange is equivalent on both sides. In other words, one entity
cannot receive a piece of property that is worth less than the property it is giving up in the
exchange”).
5
Rejecting OPSB’s argument, the trial court denied its summary judgment
motion. Although the Association pled and argued other procedural and statutory
grounds in support of its request for injunctive relief, the trial court denied the
motion based only on the alleged violation of the constitutional prohibition against
donating public property. The trial court, in its oral reasons for judgment, observed
that “whether the values are equivalent is the last hurdle that [OPSB] ha[s]n’t
cleared at this point.”11 From that ruling, OPSB filed this writ.
III.
The narrow issue presented by this writ is whether OPSB’s proposed
property swap violates the constitutional prohibition against donating state
property set forth in La. Const., art. VII, § 14(A). Construing this constitutional
prohibition, the Louisiana Supreme Court has observed that it is “violated when
11 This Court has observed that “[a] trial court’s reasons for judgment are not part of the
judgment and that appellate courts review judgments, not reasons for judgment . . . [b]ut,
appellate courts may consider a trial court’s reasons for judgment to obtain insight into the trial
court’s judgment.” Heard, McElroy & Vestal, L.L.C. v. Schmidt, 22-0221, p. 16 (La. App. 4 Cir.
9/21/22), 349 So. 3d 663, 673 (citations omitted)). Here, the trial court, in denying OPSB’s
summary judgment motion, provided the following oral reasons for judgment:
In a perfect world, the remediation would be complete, another appraisal would be
undertaken, you would have a definitive value. You match that up for the
McDonogh 7 property, the Derham property, and I’m forgetting the other one,
regardless, and see how they match up. If they match up at that point, then maybe
you have a point. If they don’t, then y’all have to work something else out.
***
What I am saying is that there is a genuine issue of material fact as to what the value
of the HANO lot is at this juncture.
***
And there’s no way to consider the equivalency of the values at this point because
it's [ephemeral]. Once it’s definitive, that's a different story. . . . But right now, you
know, I think that there is that genuine issue of material fact that needs to be
resolved, and it’s not.
6
public funds or property are gratuitously alienated.” Bd. of Directors of Indus. Dev.
Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Prop. Owners, Citizens
of City of Gonzales, 05-2298, p. 20 (La. 9/6/06); 938 So.2d 11, 23 (“Cabela’s”). As
a commentator has observed, the Cabela’s case is the source of the following
three-prong test for determining whether a particular transaction violates the
constitutional prohibition set forth in La. Const., art. VII, § 14(A):
1. There must be a public purpose for the transfer which comports
with the governmental purpose for which the public entity has
legal authority to pursue;
2. The transfer, taken as a whole, does not appear to be gratuitous
(there should be real reciprocal obligations between the parties
to the transfer); and
3. The public entity has a demonstrable, objective, and reasonable
expectation of receiving at least equivalent value in exchange for
the transfer.
Isabel Englehart, The Levee Disservitude: How and Why Louisiana Should Stop
Undermining One of Its Most Essential Powers, 83 La. L.Rev. 841, 870-71 (2023)
(reformatted) (“Englehart”).12
“Attorney General opinions, as opposed to jurisprudence, have dominated
the guidance on what constitutes an unconstitutional state donation.” Englehart; 83
La. L.Rev. at 870. In a plethora of opinions, the Attorney General’s Office has
applied the three-prong Cabela’s test to determine the validity of proposed
transfers of public property. In so doing, the Attorney General’s Office routinely
has observed that the third prong of the Cabela’s test presents a fact questions.
12 The Attorney General is authorized by statute to challenge contracts that violate La. Const.,
art. VII, § 14. See La. R.S. 38:2193.
7
Such is the case here. Indeed, in denying OPSB’s summary judgment motion, the
trial court implicitly found a genuine issue of material fact as to the third prong of
the Cabela’s test—whether HANO’s BW Cooper Property is equivalent in value to
the trio of OPSB’s properties being swapped.13
In its writ, OPSB argues that the trial court erred by focusing solely on the
post-remediation fair market value of HANO’s BW Cooper Property to find that a
genuine issue of material fact exists. The gist of OPSB’s argument is that the two
million dollar gap between the appraised value of the trio of OPSB’s properties and
HANO’s BW Cooper Property is filled by one or both of the following two factors:
(i) the remediation cost that HANO has expended—or has agreed to expend—on
the BW Cooper Property; and (ii) the intangible value to OPSB of receiving the
BW Cooper Property. We separately address each factor.
HANO’s Remediation Work
OPSB contends that even if cash consideration is the sole focus of the
equivalent value issue, the proposed property swap is supported by millions of
dollars in remediation costs expended—or to be expended—by HANO. OPSB
represents that since 2018, HANO has agreed to perform in excess of four million
dollars in remediation work to prepare the BW Cooper Property for use by the
OPSB. But, the record contains correspondence, dated October 2018, from
HANO’s Executive Director, Greg Fortner, directed to the OPSB’s former Chief
Operating Officer, Eric Seling, stating that “HANO has prepared the site for
13 Here, the dispute is over the third prong of the Cabela’s test. We, thus, find it unnecessary to
address the first and second prongs.
8
redevelopment by completing over $4 million in environmental remediation.” The
record also contains correspondence, dated September 2019, from HANO directed
to HUD, requesting disposition of the BW Cooper Property, in which HANO states
that it is “anticipate[d] [that] the difference in appraisal value between the HANO
and OPSB properties will be mitigated by extensive soil remediation efforts that
have been conducted on the HANO site.” Ms. Delour attests in her affidavit,
quoted elsewhere in this opinion, that “[a]s communicated to the OPSB by HANO
in 2018, the value of the remediation work agreed by HANO to be performed for
the benefit of the OPSB’s intended use exceeds $4 million.” Given these
statements, we find, as the Association contends, the record is unclear whether the
four million dollars in remediation costs that HANO has already expended
represents that entity’s total agreed upon remediation costs or whether HANO has
agreed to expend additional remediation costs. It is also unclear whether OPSB
will be required to expend additional remediation costs to make the property
suitable for school use.
Although there is no requirement that HANO complete the required
remediation work before a determination as to the current value of HANO’s BW
Cooper Property can be ascertained, at this juncture, the current value of that
property cannot be ascertained on this record. For this reason, OPSB’s reliance on
the remediation costs to establish the equivalence of values proposed to be
exchanged in the swap is misplaced.
9
Intangible Value
The other factor OPSB cites is the intangible value associated with it
receiving the BW Cooper Property. According to OPSB, the intangible value
supports a finding of sufficient, equivalent consideration. In support, OPSB cites
Bd. of Assessors of City of New Orleans v. City of New Orleans, 02-0691, p. 16
(La. App. 4 Cir. 9/25/02), 829 So.2d 501, 509, as standing for the proposition that
intangible value is an important factor in deciding whether there has been an
unconstitutional donation of public property.
In the Bd. of Assessors case, the challenged transaction included multiple
parts: “the PILOT Agreement between the developers and the City, the related
HUD loan to the City, and the development bonds issued by [the industrial
development boards] and purchased by individual investors.” 02-0691, p. 15, 829
So.2d at 509. Finding the multi-part transaction did not constitute a constitutionally
invalid donation, this Court observed that “[c]onsideration clearly flows through
the transaction,” including that “the City is able to have an economically
disadvantaged area developed” and that “the citizens receive the benefit of
economic development that would not have taken place absent the PILOT and
HUD loan.” Id. Continuing, this Court observed that “[a] public entity has wide
discretion to contract, provided it receives sufficient consideration, which may
include economic return, increased employment and attraction of similar
development to the area.” Id. (citation omitted).
10
Here, unlike in the Bd. of Assessors case, it cannot be concluded, on this
record, that consideration clearly flows through the proposed property swap. The
intangible value to OPSB of receiving HANO’s BW Cooper Property hinges on
the ability to develop that property as planned—for school use. But, the record
reflects that the plan to do so is uncertain for multiple reasons. First, whether the
swap will have a negative effect on OPSB given the two million dollar gap in
appraised values of the properties being exchanged is unclear. Second, there is
uncertainty, given the lack of information, as to the cost of the remaining
remediation work that must be completed before the BW Cooper Property can be
developed for school use. Finally, as discussed elsewhere in this opinion, there is
uncertainty as to whether HANO, OPSB, or both will have to bear any required
remaining remediation costs. OPSB’s reliance on the intangible value flowing from
the swap to establish equivalence in value exchanged is thus misplaced.
Accordingly, the trial court did not err in denying OPSB’s summary
judgment motion given that whether the values of the properties proposed to be
swapped are equivalent cannot be ascertained.
DECREE
For the foregoing reasons, OPSB’s writ is granted, but the relief requested is
denied.
WRIT GRANTED; RELIEF DENIED
11