Record and brief — Hernandez v. City of Lafayette

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

81-6001 seas

NO.

Office - Supreme C

FILED

ourt

1981

U.S. |

3n the

Supreme Court of the United States

OCTOBER TERM, 1981

JAMES E. HERNANDEZ, APPELLANT

THE LAFAYETTE, LOUISIANA AND

THE CITY COUNCIL OF LAFAYETTE,

LOUISIANA, APPELLEE.

ON APPEAL FROM THE THIRD CIRCUIT

COURT OF APPEAL

IN AND FOR THE STATE OF LOUISIANA

JURISDICTIONAL STATEMENT

ONEBANE, DONOHOE, BERNARD,

aa DIAZ, MCNAMARA &

JOSEPH ONEBANE

JOHN G. TORIAN, II

MICHAEL G. DURAND

P.O. DRAWER 3507

LAFAYETTE, LA. 70502

QUESTIONS PRESENTED BY THE APPEAL

MAY A MUNICIPALITY REPEATEDLY

REFUSE A REQUEST FOR A ZONING

CHANGE BASED ON ITS DESIRE TO

HOLD DOWN THE VALUE OF SUCH

PROPERTY IN ANTICIPATION OF A

FUTURE EXPROPRIATION PRO-

CEEDING WITHOUT VIOLATING THE

14TH AMENDMENT TO THE UNITED

STATES CONSITUTUION?

DOES THE ZONING ORDINANCE OF THE

CITY OF LAFAYETTE, LOUISIANA, AS

APPLIED TO THE PROPERTY OF JAMES

E. HERNANDEZ DENY HIM A REASON-

ABLE RETURN OR REASONABLE USE OF

HIS PROPERTY, THEREBY DEPRIVING

HIM OF PROPERTY WITHOUT JUST COM-

PENSATION AND DUE PROCESS OF LAW

IN VIOLATION OF THE 5TH AND 14TH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION?

TABLE OF CONTENTS

QUESTIONS PRESENTED BY

cia en dean ody shin sawanens i

TABLE OF AUTHORITIES.................. iii

ee ee 1

STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THIS COURT

Es b's 64 5.05.5 on awakes os aa ene hae 2

CONSTITUTIONAL PROVISIONS, STATUTE

AND ORDINANCES INVOLVED.............. 4

STATEMENT OF THE CASE................. 5

THE FEDERAL QUESTIONS PRESENTED —_

re Lisa Saks hae a ae eRe > Ms 88

A. THE IMPLICIT LEGITIMATION OF

THE CITY’S CONDUCT BY THE

LOUISIANA APPELLATE COURT

JEOPARDIZES THE VERY SUR-

VIVAL OF THE PROTECTIONS AF-

FORDED TO CITIZENS BY THE 5TH

AND 14TH AMENDMENTS TO THE

UNITED STATES CONSTITUTION ..... 14

B. THE APPLICATION OF THE R-1-A

CLASSIFICATION TO APPEL-

LANT’S PROPERTY LEAVES HIM

WITH NO ECONOMICALLY VIABLE

USE FOR THAT PROPERTY AND AS

SUCH VIOLATE APPELLANT'S

CON- STITUTIONAL RIGHTS

UNDER THE 5TH AND 14TH

AMENDMENTS TO THE UNITED

STATES CONSTITUTION ......--.-.---- 22

I oe oho 56th 50s40 esObaccescess 28

APPENDIX

Judgment and Opinion of the Court of

Appeal, Third Cheait. for the State of

EN, caches cdk eee be eee caetes

Denial by Court of A Third Circuit

of Application for DR own bea 644

Denial by Louisiana Supreme Court of

Application for Certiorari, or Writ of

Review, to the Court of Appeal, Third

Circuit filed by James E. Hernandez.....

Judgment of the Fifteenth Judicial

Court in and for the Parish of Lafayette,

eS ace ee

Written reasons for ruling of the Fif-

teenth Judicial District Court in and for

the Parish of Lafayette, State of Loui-

Notice of Ap to the Supreme Court

of the Uni ta

Pertinent Text of Zoning Ordinance of

the City of Lafayette, Louisiana.........

eaeeeGeoeeaeeseceeseeeenedeeoeeoeeaeeeaensoaesde2d ©

hres s ones eeeuear as

TABLE OF AUTHORITIES

CASES: PAGES

gins vs. City of Tiburon, 447 U.S. 225, 65 L.

Ed-2nd 106, 100 S.Ct. 2138 (1980).............. 4

Arastra Limited Partnershi Lue City of Palo Alto,

401 F. Supp. 962 (D.C., N.D.Cal. 1975)......... 20

Chicago B & Q Railroad vs. City of Chicago, 166 Y.S.

266, 41 L.Ed. 979, 17 S.Ct. 581 (1897).......... 16

Erzonoznik vs. City of Jacksonville, 422 U.S.

205, 45 L.Ed.2d 125, 95 S.Ct. 2268 (1975)........ 4

Goldblatt vs. Town of Hempstead, 369 U.S.

590, 8 L.Ed.2d 130, 82 S.Ct. 987 (1962)...... 15, 23

In Re Primus, 436, U.S. 412, 56 L.Ed.2d 417,

ec ccc ec eeea gee se6auses 24

Nectow vs. City of Cambridge, 277 U.S. 183,

72 L.Ed. 842, 48 S.Ct. 447 (1928)........... 15, 23

Penn Central vs. City of New York, 438 U.S. 104,

57 L.Ed. 2nd, 631, 98 S.Ct. 2646 (1978). . ..4, 24, 25

Pennsylvania Coal Company vs. Mahon, 260 U.S. 393,

67 L.Ed. 322, 43 S.Ct 1! sans eeu vey's < 15

Pinheiro vs. County o ——— 60 Cal. App. 3rd

323, 327, 328, 131 Rptr. 633

EE Otis he dlih ken babes cob aneokus wee 21

Richmond Elks Hall Association vs. Richmond Re-

ome Agency, 561 F.2d, 1327 (9th a

Robertson vs. City of Salem, 191 F. Sup., 604

D.C., Ore. W961)... «6... eee, 16, 17, 18, 19

ety ee of Santa Cruz, 415 F.

1340 (N.D. f

Se CS ov uscccecsc¥ceuenueat

Toso vs. City of Santa Barbara, 10 Cal. App. 3rd,

934, 955, 162 Cal. Reptr. 210(1980)............ 21

Whitus vs. State of Georgia, 385 U.S. 545, 17

L.Ed.2d 599, 87 S.Ct. 643 (1967).............. 24

Village of Euclid vs. Ambler Realty Company,

272 U.S. 365, 71 L.Ed.2d 303, 47 S.Ct. 11

PEE Se ccvaucostuncaeesasueeedienneee 4,15

CONSTITUTIONS AND STATUTES:

KS 4, 15

U.S. CONST. amend. XIV................... 5, 16

THE OPINIONS BELOW

The Supreme Court of the State of Louisiana

denied Mr. Hernandez’s application for certiorari or

writ of review to the Court of Appeal, Third Circuit on

June 22, 1981, making the judgment of the Third Cir-

cuit Court of Appeal a final judgment or decree

rendered by the highest court of the State of Loui-

siana in which a decision could be had and therefore

appealable to the Supreme Court of the United States.

The written denial is noted at_____So. 2d___(La.

1981). The judgment of the Third Circuit Court of Ap-

peals for the State of Louisiana, which dismissed

James E. Hernandez’s suit against appellees seeking

declaratory and injunctive relief and reversed the

judgment of the 15th Judicial District Court in and

for the Parish of Lafayette, State of Louisiana, was

rendered on March 26, 1981 and is reported at 399 So.

2d 1179 (La. App., 1981). Appellant’s timely applica-

tion for a rehearing in the Third Circuit Court of Ap-

peal was filed on April 23, 1981 and denied on May 8,

1981.

The judgment of the 15th Judicial District

Court in and for the Parish of Lafayette, State of Loui-

siana, was rendered on June 25, 1980 and is

unreported.

A copy of the writ denial of the Supreme Court,

the opinion of Third Circuit Court of Appeal, and the

opinion of the 15th Judicial District Court is included

herein within the Appendix.

STATEMENT OF THE GROUNDS ON WHICH

JURISDICTION OF THIS COURT IS INVOKED

This is a suit for declaratory and injunctive

relief by a landowner who has attempted since 1975 to

have his undeveloped property zoned by the City of

Lafayette, Louisiana from a classification which

allows only limited residential development (R-1-A) to

either a multi-family residential classification (R-2), a

medical office classification (B-1-M) or a limited

business classification (B-1-0). Appellant contended

below that the refusal to rezone his property was

based on a scheme by city officials to freeze the

property value of his land so that the City of

Lafayette would have to pay less for the anticipated

expropriation of that property in conjunction with a

long planned capital improvement project. This pro-

ject involved the realignment of a major thoroughfare

in the City of Lafayette, Louisiana, West Bayou

Parkway, and Gerard Park Drive. Plans obtained

from the City of Lafayette clearly showed that the

configuration of the improvement project would re-

quire expropriation of segments of land belonging to

Mr. Hernandez. Appellant also contended below that

due to the physicial characteristics of the subject

property, the high intensity surrounding uses, the

high traffic volume at the intersection where the

property is located and the “spectre” of the an-

ticipated expropriation, the property was rendered

totally useless under its existing classification.

In spite of a last second attempt to salvage the

litigation by repealing the capital improvement

project in toto (a maneuver which testimony has clear-

ly shown was undertaken because the City had been

advised by its attorneys that it would lose the zoning

litigation if it did not do so), the District Court ruled in

favor of Appellant. The Court found that Appellant

had been deprived of all reasonable use of his property

by the refusal to rezone it and also that the City had

clearly violated Mr. Hernandez’s constitutional rights

under the 5th and 14th Amendments to the United

States Constitution by it’s scheme to use zoning as a

tool to keep down prices for the planned future ex-

propriation. Written reasons for the ruling were

assigned on June 9, 1980 and the judgment was

signed on June 25, 1980.

The City appealed this judgment to the Third

Circuit Court of Appeal for the State of Louisiana.

The Appellate Court reversed the opinion of the trial

court on March 26, 1981. A timely application for

rehearing asking the Court to specifically address the

Constitutional questions raised by the City’s conduct

regarding the scheme to freeze property values, filed

on April 23, 1981 was denied without written reasons

on May ®, 1981. Appellant’s application for writ of

certiorari or review was timely filed with the Loui-

siana Supreme Court on June 5, 1981 and denied

without written reasons on June 22, 1981. Appellant’s

Notice of Appeal to the United States Supreme Court

was filed with the Third Circuit Court of Appeal on

July 22, 1981.

This appeal is taken pursuant to the provisions

of 28 USCA Sec. 1257 (2). Cases supporting the exer-

cise of this Court’s jurisdiction are as follows:

Viliage of Euclid vs. Ambler Realty Company,

272 U.S. 3°, 71 L.Ed.2d 303, 47 S.Ct. 114 (1926)

Erzonoznik vs. City of Jacksonville, 422 U.S.

205, 45 L.Ed.2d 125, 95 S.Ct. 2268 (1975)

Penn Central vs. City of New York, 438 U.S.

104, 57 L.Ed.2d 631, 98 S.Ct. 2646 (1978)

Agins vs. City of Tiburon, 447 U.S. 255, 65

L.Ed.2d 106, 100 S.Ct. 2138 (1980)

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

T .e validity of the Zoning Ordinance of the City

of Lafayette, Louisiana, as applied to the property of

Appellant is here involved. The pertinent text of the

ordinance (Ordinance No. 0-191 of the City of

Lafayette, Louisiana) is included in the Appendix to

this Jurisdictional Statement.

The application of the ordinance is challenged

under the 5th and 14th Amendments to the Constitu-

tion of the United States. Their provisions are set

forth in full as follows:

AMENDMENT V: No person shall be held to

answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of

a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in

actual service in time of War or public dange’ .

nor shall any person be subject for the same of-

fence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of

life, liberty, or property, without due process of

law; nor shall private property be taken for

public use, without: just compensation.

AMENDMENT XIV: Section 1. All persons

born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein

they reside. No State shall make or enforce any

law which shall abridge the privileges or im-

munities of citizens of the United States; nor

shall any State deprive any person of life, liber-

ty, or property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

This case involves an attempt by a fifty (50)

year old music instructor with congenital cataracts

and polio to have his 16.7 acre undeveloped tract of

land zoned from single-family residential (R-1-A) to

some zoning classification which will allow him a

reasonable use of his property. Additionally, it in-

volves an attempt by the City of Lafayette, Louisiana

to use its power to zone as a tool to either freeze

property values on Appellant’s tract or to extract

from him cheer prices for the tract as a prelude to

an expropriation which would be required for the

City’s proposed capital improvement project aligning

two throughfares within the City of Lafayette, Loui-

siana.

Trial was held on January 3rd and 4th and

February 6th through 8th, 1980. Appellant’s various

petitions clearly alleged federal constitutional viola-

tions of his 5th and 14th Amendments rights by vir-

tue of the City’s attempt to utilize the zoning power to

extract from Appellant cheaper rights-of-way over his

property and additionally, by application of the or-

dinance to plaintiff's property depriving him of any

economically viable use of his land. The trial court

ruled in favor of plaintiff. The Court found that

maintenance of the R-1-A classification on the subject

property was arbitrary, capricious and unreasonable

leaving plaintiff with no economic use of his property.

Most significantly, the trial court found the concerted

actions of the defendants, which included admissions

by council members regarding the unconstitutional

purpose behind the refusal to rezone the property, and

the blatant attempt to defeat judicial review of their

actions by repealling the ordinance of necessity for the

realignment project so the project could be ‘re

evaluated’’ showed a scheme by which the City

planned to take Mr. Hernandez’s property through

zoning. Defendants own attorneys had advised them

that their actions were absolutely indefensible given

the presence of the realignment project. For no other

reason than to hurt Mr. Hernandez and to win a

lawsuit, the City repealed what was described by its

own officials as the most justified capital improve-

ment project in the history of the City of Lafayette. In

sum, the Mayor and the City of Lafayette ignored the

advise of its local zoning experts for five (5) long

years, refusing to rezone on the property in order to

make good the Mayor’s threat to Mr. Hernandez “J

am going to get you.”

Mr. Hernandez’s initial attempt to have his

property rezoned to medical offices (B-1-M) was

unanimously approved by the professionai staff of the

Planning Commission. (Tr. 1236-1238). Mr. Her-

nandez leter learned however, that the Planning Com-

mission itself would vote not to rezone the property

because the City would be putting a road through the

middle of his home and property. (Tr. 1383). The

Planning Commissioner Director at that time felt that

a B-1-M classification would be the best one for the

subject property. (Tr. 1240). In February of 1976, a

member of the Lafayette City Council, now Council

President Benny Ritchey, stated:

“If we change the zoning to another classifica-

tion, we are going to have to pay more money when we

create the right-of-way.” (Tr. 1174, 1201, 1202).

Plaintiff tried to have his property rezoned to

R-2 (multi-family) in August of 1977. Again, the City

and its Council expressed an interest in the viability of

the realignment project as it affected Mr.

Hernandez’s petition for rezoning. After many

delays, the Council upheld planning commission ac-

tion which deleted Mr. Hernandez’s second rezoning

request from a comprehensive public hearing sched-

uled in February of 1978 basing its action on its deci-

sion to postpone any final decision on the rezoning

classification until the City lad determined the route

of the proposed realignment project. (Tr. 1142).

At this point in time, Mr. Hernandez’s plight

has been characterized by the 5th Circuit of Appeal in

‘its opinion in conjunction with Appellant’s action for

damages filed in Federal Court:

After attempting to obtain a change in zoning

for two and Poe half years and believing no zon-

ing change would be meena See the City

had —- a right-of-way over his property at

either R-1-A prices or as a part of a concession

by him in return for the desired zoni

assification, the plaintiff, on February 3rd,

1978, filed suit in the State Court for a man-

datory injunction to compel the City to change

the R-1-A zoning classification on his property.

On nay ong 2ist, the City Council voted to

rezone the Hernandez property to R-2. The

Mayor, however, ve this measure and the

Council failed to override the Mayor's veto. In

January of 1979 the City attorney began

negotiations with the plaintiff to settle the

pending lawsuit in State , which was set for

trial on February 7, 1979. Hernandez vs. rnd

of Lafayette, et al, 643 F. 2nd 1188, 1191 (5t

ircuit 1981).

Those negotiations were begun by the City in

January of 1979. Counsel for the defendants at the

time, Mr. Ronald Judice, was instructed to secure

financial concessions from Mr. Hernandez prior to any

approval of asettlement agreement. Mr. Judice had

explained to the Commission, the Council and the

Mayor in correspondence dated February 5, 1979, the

factors which compelled him to recommend to the

Council that the litigation be concluded on amicable

basis. He advised the Council and the Mayor that in

light of all the facts and circumstances:

“It was (his) opinion that a lengthy and costly

trial of the zoning litigation would probably

have resulted in a decision adverse to tthe City

of Lafayette with respect to the p ~ “id of

continued R-1-A zoning. ac (Tr. 635 ¢ 63

The Mayor and the Council all signed a letter

giving their approval to the terms of the settlement

and authorized Mr. Judice to formalize the agreement.

(Exhibit P-22). Mr. Hernandez upset the imminent

trial date scheduled for February 7, 1979. On March

6, 1979 Mayor Bowen refused to sign the formal com-

promise which had been prepared.

Mr. Hernandez again went before the Council,

now seeking a B-1-0 classification. The Council

granted the application by a three-to-two vote. Mayor

Bowen again vetoed the ordinance and the Council

failed to override the veto.

With a new trial date set for January 3, 1980,

Counsel from Chicago, Illinois was retained.

On September 28, 1979 the Mayor asked the

City Council to repeal the ordinance declaring the

realignment project at public necessity. The Mayor

asked the Council to repeal the ordinance of necessity

for a public improvement project which only two mon-

ths before had been described by the capital im-

provements supervisor for the City as the most

justified project in the City of Lafayette’s history.

Although the May or stated publicly that there were

“new facts’’ which showed that the project was no

longer ‘‘a present necessity,’’ in response to the sub-

poena duces tecum to produce all written documenta-

tion which indicated such new facts, the only docu-

ment produced was a substantially blacked out letter

from a New Orleans land use planner retained by

counsel for the defendants, Dr. Ralph Thayer. (Ex-

hibit P-19). The unexpunged copy of the letter which

was later secured in no uncertain terms to!d the

defendants that if they did not cancel the realignment

project he, as an expert in land use, would not be able

to support the R-1-A classification:

At this time, I am at a crossroads on this issue.

I am quite sure this case is heavily politically

motivated and has much less to do with su

port of good planning. But the injection of the

realignment knocks that calculation into a

cocked hat for me. The two, as depicted, are not

compatible and I would be compelled to say this

if queried. (Though I would not volunteer it).

Given the circumstances, my decision to con-

tinue participation must, for personal and pro-

fessional reasons, be predicated on the will-

ingness of Mayor Bowen to publicly withdraw

or otherwise remove the alignment question

from the issue. He may be ee co so

but I fear -- and I will not discuss this beyond us

-that he is trying to hurt the Hernandez family

for whatever reason by giving a zoning

classification he feels inappropriate once the

road is in place. Since R-4 and B-1-0 would be

more appropriate for the two parcels after the

— I would only be willing to defend

R-1-A given no realignment. Absent that, I

simply cannot defend his action nor do, I

believe it either lanning or in Lafayettes

best interest. ( xhibt P19).

Council President Pat Calais testified that even

though the City’s prior experts felt that the project

was a necessity for the City, the Council would go

along with repealing the ordinance authorizing the

realignment due to the fact that their attorneys from

Chicago had advised that not to repeal the ordinance

could place the City of Lafayette in jeopardy with

regard to pending zoning litigation! (Exhibit P-18).

Councilman Ritchey voted to abandon the project

without any new planning advice! The proposal to

abandon the realignment came from Mr. Siemon, the

City’s attorney. (Tr. 1212). Councilman Ritchey

sought no documents or proposals concerniug the pro-

posal to abandon the realignment. (Tr. 1213). Mr. Rit-

chey was told that if the City stayed with the realign-

ment project they had a substantial chance of losing

the zoning litigation. (Tr. 1219).

When pieced together the puzzle becomes clear:

Mr. Hernandez was being blackmailed by the City to~

get his land at cheap prices.

The case was also considered by the learned

trial judge in a “‘pure’”’ zoning context. The Court

found the property to be part of Lafayette’s South

College Road neighborhood, an area which is un-

disputedly business in nature. It is noted that the

defendants also considered the property as part of the

South College Road area prior to the issue of

neighborhood becoming an important one in this

litigation (Exhibit P-8). The property has frontage on

West Bayou Parkway and also on South College

Road. The Court found that West Bayou Parkway

was an arterial thoroughfare. Before its becoming an

issue in the lawsuit, the City had also considered West

Bayou Parkway as an arterial. (Exhibit p.7). There is

property directly across West Bayou Parkway from

the property which is zoned R-2 and in fact apart-

ments are to be constructed on that site. (Tr.1111).

The subject property also is directly adjacent to the

access road of one of the largest sewerage treatment

plants in the City of Lafayette. (Tr.1111-1112). The

use of the sewerage treatment plant is clearly an in-

dustrial one. (Tr. 1608).

The east side of the property is bordered by

Coulee Mine. It is one of the major drainage canals in

the City of Lafayette and has a width of approximate-

ly fifty feet. Behind this natural buffer lies Bendel

Gardens, a residential subdivision on Beverly Drive.

All of the homes in Bendel Gardens face Beverly

Drive and not the Hernandez property nor the

sewerage treatment plant. (Tr. 1112, 1115-1116).

West Bayou Parkway carries in excess of

12,000 vehicles per day and South College Road, at

the particular section between West Bayou Parkway

and Pinhook is currently one of the heaviest travelled

roads in the entire city. There are in excess of 32,000

vehicles on South College Road at that point. (Tr.

1118-1119, Exhibit P-9).

B-1-M (medical offices) developments have been

constructed directly across from the property on

South College Drive. In the general vicinity of the

property, numerous large office buildings have been

constructed. (Tr. 1600-1612). At the trial level, one of

the City’s own local experts stated that the building

trend from the Hernandez property moving towards

Johnston Street would clearly be B-1-0. (Professional

Offices).

Mr. Cecil Trahan, the only expert qualified to

give opinions concerning sales of real estate in

Lafayette, Louisiana, testified without hesitation that

the property could only be “developed” in the sense

that buildings could be placed physically on the pror-

erty. It was his clear opinion that the property could

not be sold in the City of Lafayette, Louisiana as

R-1-A property. (Tr. 1440, 1441, 1464).

After a full trial on the merits, the trial judge

found that the constitutional challenges to both the

defendant’s conduct in attempting to expropriate

property through zoning and additionally in the ap-

plication of the ordinance to the subject property

should be sustained. On appeal, the Third Circuit

Court of Appeal reversed the determination of the

trial court. In its opinion, the Third Circuit failed to

address the issues critical to Mr. Hernandez’s case:

the abuse and misuse of the police power by the City

in an attempt to extract property from Mr. Hernandez

without the payment of just compensation. Addi-

tionally, the Third Circuit’s opinion ignored compe

tent testimony which clearly established at trial the

conclusion that application of the R-1-A classification

to the subject property deprived Mr. Hernandez of

any economically use of his property. Plaintiff's time-

ly application for a rehearing urging the Court to ad-

dress these critical issues was filed on April 23rd,

1981. The application was denied without written

reasons on May 8, 1981. Timely application for writs

of certiorari or review to the Louisiana Supreme Court

were also denied without written reasons on June 22,

1981. Appellant filed a Notice of Appeal to the United

States Supreme Court with the Third Circuit Court of

Appeal on July 22, 1981.

THE FEDERAL QUESTIONS PRESENTED

ARE SUBSTANTIAL

A. THE IMPLICIT LEGITIMATION OF THE

CITY’S CONDUCT BY THE LOUISIANA

APPELLATE COURT JEOPARDIZES THE

VERY SURVIVAL OF THE PROTECTIONS

AFFORDED TO CITIZENS BY THE 5TH

AND 14TH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

The decision of the Third Circuit Court of Ap-

peal for the State of Louisiana in effect has told every

municipality in this State and even across the Nation

that it is not a violation of constitutional law for a city

to attempt to blackmail a landowner by utilizing its

zoning power as a sword in order to extract property

rights from that landowner without the payment of

just compensation. The Court failed to deal with the

constitutional challenges of Appellant and refused to

even discuss the blatant misuse of the massive police

power to strongarm this landowner into forfeiting his

rights to due process and just compensation. If this

decision is allowed to stand, it will be an invitation to

municipalities across the nation to save expropriation

dollars by threatening potential condemnees with bla-

tant abuse of their constitutional proctections.

It is unquestionable that a local government

has the power to regulate permissable land uses in

conformance with a comprehensive plan. Village of

Euclid vs. Amber Realty Company, 272 U.S. 365, 71

L.Ed. 303, 47S.Ct. 114 (1926). In order to be constitu-

tional, however, the regulation must be a reasonable

exercise of the police power. Pennsylvania Coal Com-

pany vs. Mahon, 260 U.S. 393, 67 L.Ed. 322, 43S.Ct.

158 (1922); Goldblatt vs. Town of Hempstead, 369

U.S. 590, 8 L.Ed. 2d 130, 82 S.Ct. 987 (1962). Due Pro-

cess of law requires that the regulation must rational-

ly promote a public objective and that, regardless of

the benefits to be derived by the public from the land

use regulation the property owner must not be denied

a reasonable return on the properties subject to the

regulation. Nectow vs. City of Cambridge, 277 U.S.

183, 72 L.Ed. 842, 48 S.Ct. 447 (1928). If the zoning

restriction fails these tests, there is an invalid exercise

of the police power, which deprives the landowner

without due process of law. Nectow vs. City of Cam-

birdge, supra; Goldblatt vs. Town of Hempstead,

supra.

The provisions of the 5th Amendment to the

U.S. Constitution are clearly made applicable to the

States by virtue of the 14th Amendment to the United

States Constitution. Chicago B & Q Railroad vs. City

of Chicago, 166 U.S. 266, 41 L.Ed. 979, 17 S.Ct. 581

(1897).

In Robertson vs. City of Salem, 191 F.Supp.,

604 (D.C., Ore. 1961), the plaintiff owned land lying

within the municipality of Salem. The City of Salem

passed a zoning ordinance applying to plaintiff's prop-

erty. The State legislature passed a resolution in-

dicating that the State wished to ultimately acquire

property within the district at sometime in the future.

The city ordinance passed by the government of

Salem prohibited commercial and business activity on

plaintiff's land.

Plaintiff's suit in the Robertson case contended

that the zoning ordinance was passed for the purpose

of preventing further economic development within

the district and to hold and freeze the area of the

district for future acquisition by expropriation by the

State of Oregon without present payment of just com-

pensation. An examination of the record in the ins-

tant case clearly shows that plaintiff's plea in the

Robertson case is exactly on point with the plea of Mr.

Hernandez herein.

The Robertson court noted that there were

properties directly across one of the main traffic

arteries which were zoned for and substantially

devoted to commercial and business uses. Directly

across South College Drive in the instant case stands

a medical office complex situated on property zoned

B-1-M. In the Robertson case it was noted that within

the same block as one of the parcels involved were pre-

existing and non-conforming commercial business

uses, much as the largest sewerage treatment plant in

the City of Lafayette abuts Mr. Hernandez’s property

in the instant case.

The Robertson court stated that there was no

evidence to show that removal of the restrictions

would adversely affect property in the area. The

record in the instant case clearly shows a great

volume of testimony, including testimony by defen-

dants on local experts, that a B-1-O development

would not adversely affect the surrounding

neighborhood in this case. Mr. Hernandez’s expert

real estate appraiser, Mr. Chappuis, testified that

B-1-O was the highest and best use of the property, in

addition to stating that such a use could enhance the

overall area value instead of harming it. (Tr. 1364).

Mr. Cecil Trahan, the only expert to testify in regard

to real estate sales, noted that the property under a

B-1-O classification would be a great benefit for the

area and have no adverse impact on the surrounding

neighborhood. (Tr. 1447). Dr. Dennis Ehrhardt,

former planning director for the City of Lafayette,

testified that B-1-O would be the best classification

for the subject property. (Tr. 1344, 1348). Mr. James

Broussard, the defendant’s expert architect, testified

that B-1-O classification was a restrictive one and that

he had previously worked on B-1-O developments

specifically designed to fit into residential

neighborhoods. (Tr. 1614, 1615). Mr. Broussard fur-

ther testified that the Hernandez B-1-O site plan

would not create any problems with the surrounding

neighborhood. (Tr. 1618-1619; Exhibit P-49, Exhibit

P-40).

After examining the facts of the case, the Court

in Robertson posed the question: '

_ “*What then is the reason or purpose underlying

and motivating the adoption of the ordinance and

resulting land use restrictions on the property?”

Rovertson, supra, at p.610.

The Court in the Robertson case proceeded to

answer its question:

It is conceded that the motive of a legislative

ep zoning authority such as .Salem’s

Council is not su — to judicial inquiry in ad-

judicating the validity of a zoning ordinance

a land uses.’ Annotation, 71 ALR

2nd 568 ( —- A. the other hand, is -_ im-

proper to judicially investigate ‘‘the rea -

pose, the object and the operative effect” of

such an ordinance when laboring to determine

its reasonableness. Robertson, supra, at p. 610.

The Robertson court noted that all the plajntiff

was asking for was that the city either expropriate his

property and pay him just compensation or allow him

to use his property as did his neighbor across the

street. Robertson, supra, at p. 611.

In addressing plaintiff's contention that the on-

ly purpose in establishing the district and imposing

the land use regulations was to depress land values

and present a higher and better economic use of the

property prior to some future eminent domain pro-

ceeding, the Court found that the evidence substan-

tiated that point and led one inescapably to agree with

the contention. The Court noted the letters and com-

munications of the planning commission and other

evidence which proved an indelible record of Oregon’s

“selfish intentions and desires for its future pocket-

book.”’

The Robertson court concluded by finding the

actions of the Salem Council as violating the provi-

sions of the 5th and 14th Amendments to the Con-

stitution of the United States:

This Court is of the opinion that Ordinance No.

4578 is arbitrary and discriminatory and that it

is, in effect, an attempt on the part of Salem to

use its police power to take Robertson’s proper-

ty without due process of law and without pay-

ment or just compensation for the taking, and

therefore violative of the guarantees of the Con-

stitution of the United States and the State of

Oregen and, hence, void as to Robertson.

Robertson, supra, at page 612.

The holding in Robertson mirrors the opinion of

the 15th Judicial District Court in the instant case:

The power of a municipality to expropriate and

the regula zoning ions performed by a

political subdivision are enti separate func-

tions and should be kept so. The evidence in

this case is clearly to the contrary.

Those principals of constitutional law were also

recognized by the United States District Court in and

for the Northern District of California in Arastra

Limited Partnership vs. City of Palo Alto, 401 F.

Supp. 962 (D.C., N.D. Cal. 1975). Under cir-

cumstances similar to the Robertson case, the Court

cautioned that ‘‘care must be taken, however, to

distinguish between the power of the community to

zone and the power to condemn.”’ Arastra, supra, at p.

977. In the case before the Arastra Court, it found

that if a local ordinance is not in factor a bona fide at-

tempt to impose limitations on the use of the property

of an individual, but rather the final step in a program

designed to acquire rights over the property for the

enjoyment and use of the public in general, the action

must be found to be invalid. Arastra, supra, pp. 978,

979.

The refusal of the Third Circuit Court of Appeal

for the State of Louisiana and the Louisiana Supreme

Court to even address such grave constitutional

challenges cries out for a review by appeal by this

Honorable Court. It is simply no longer acceptable

nor constitutional for a municipality to attempt to

hide behind a veil of ‘presumption of validity”’ while

utilizing that veil as a shield from constitutional

scrutiny. The State of California, a hotbed of zoning

litigation in recent years, has recognized the gravity

ef the problem and judicially provided for the ap-

propriate remedy. The California courts have carved

out a “notable exception’”’ to the general rule that the

motive of city officials is irrelevant to the inquiry of

the reasonableness of a zoning ordinance. California

courts may inquire into the motive oi local legislators

where there are precondemnation activities intended

to freeze or lower the value of property so that the

property can be bought at a reduced price. Pinheiro

vs. County of Marin, 60 Cal. App. 3rd 323, 327, 328,

131 Cal Rptr. 633 (1976); Toso us. City of Santa Bar

bara, 10 Cai. App. 3rd, 934, 955, 162 Cal. Rptr. 210

(1980).

Mr. Hernandez stands before this Court and im-

plores it not to declare open season on landowners

who face the threat of governmental manipulation

prior to anticipated exprupriation. If the position of

the Third Circuit Court of Appeal is left intact in this

case, executive branches of government may in-

discriminately use the police power as a sword upon

which to impale unsuspecting landowners with the

knowledge that in the event they are challenged, all

that will be necessary is to retain one or two ex post

facto “‘experts’’ who will state that in spite of

everything which has been said by local experts in the

past, a few more cars will appear on the road or

neighborhood integrity will be infringed upon. This

case will be a shining light for such violations of the

United States Constitution. As the trial court clearly

determined, the city’s own experts advised passage of

the requested zoning changes prior to the retention of

Mr. Wiles, a land use planner from Washington, D.C.

who spent seven days in the City of Lafayette, and

Mr. Gern, a traffic expert from Illinois, who spent on-

ly two days in the City of Lafayette. Prior to the im-

portation of these experts, each member of the

Lafayette City Council had indicated that a change in

zoning classification for the property was needed

either by his testimony or by his vote. The Planning

Commission's professional staff of experts for the Ci-

ty of Lafayette has recommended a change from the

R-1-A classification. Mr. Burt Landry, the city’s

Former Director of City Planning, has recommended

that the property should be rezoned from it’s R-1-A

classification. Mr. Gene Cope, the defendant's ap-

praiser testified that he believed the property should

be rezoned from its R-1-A classification. Dr. Dennis

Ehrhardt, formerly with the City of Lafayette, recom-

mended rezoning the prop-

erty from R-1-A.

The federal issues presented by Mr. Hernandez

on this appeal are substantial and deserve considera-

tion by this Court in full session in order to prevent

the travesty which has befallen this landowner from

ever occurring again.

B. THE APPLICATION OF THE R-1-A

CLASSIFICATION TO APPELLANT'S PRO-

PERTY LEAVES HIM WITH NO

ECONOMICALLY VIABLE USE FOR THAT

PROPERTY, AND SUCH VIOLATES AP-

PELLANT’S CONSTITUTIONAL RIGHTS

UNDER THE 5TH AND 14TH AMEND-

MENTS TO THE UNITED STATES CON-

STITUTION.

It is axiomatic that even if a zoning ordinance is

found to be a valid exercise of the police power it is un-

constitutional as applied to a particular landowner if

that application denies him a reasonable return on his

investment or a reasonable use of his property. Nec-

tow us. City of Cambridge, supra; Goldblatt vs. Town

of Hempstead, supra. The jurisprudence is clear that

there is no set formula to determine where regulation

ends and taking begins. Goldblatt vs. Town of Hemp-

stead, supra, at P. 594. It is clear, however, that it is

not necessary that property be absolutely taken in the

narrow sense of that word to come within the protec-

tion of the Constitution. It is sufficient if the action

by government involves a direct interference or

disturbance of property rights. The government need

not directly appropriate the title, possession or use of

the property. Richmond Elks Hall Association vs.

Richmond Redevelopment Agency, 561 F. 2d, 1327

(9th Circuit, 1977).

In San Fillippo vs. County of Santa Cruz 415 F.

Supp. 1340 (N.D.Cal. 1976), the Court rejected the ap-

plication of the “‘any reasonable basis”’ test and ap-

plied the ‘‘independent judgment test’”’ for evaluating

zoning regulations. The Court noted that:

“The Constitutional test in “taking” cases re-

s an independent judicial sis of the

acts of the case and not merely a that

the legislative body acted on substantial

evidence or was not unreasonable or arbitr

in enacting the ordinance in question.

course, the Court will give considerable weight

to the well-consid planning decisions of

State and local tive bodies, but this is on-

ya of several factors to be considered.’’ San

illippo, supra, at p. 1344.

It is, therefore, clear that the question of

whether or not there has been a taking through an ap-

plication of a zoning ordinance to a particular piece of

property depends upon an analysis of the facts of the

case as applied to the land in question. Among the

factors which must be considered are the extent to

which the regulations have interfered with the

distinct investment backed expectations of the lan-

downer, the character of the governmental action and

the economic impact of the regulation upon the lan-

downer. Penn Central vs. City of New York, 438 U.S.

104, 57 L.Ed. 2d 631, 98 S.Ct. 2646 (1978).

As this Court has many times stated, the duty

of the Supreme Court of the United States is not

limited to the elaboration of constitutional principal;

the Court must also in proper cases review the

evidence to make certain that those principals can be

constitutionally applied. Jn Re Primus, 436 U. S. 412,

56 L. Ed. 2d 417, 98 S. Ct. 1893 (1978). Even if there is

no controversy as to the constitutional principal in-

volved, when the question involved is in the applica-

tion of such principals to the facts disclosed ir a par-

ticular case, it is within the province of the Supreme

Court to analysis the facts in order that the ap-

propriate enforcement of the Federal right may be

assured. While conclusions reached by the highest

court of a state are entitled to great respect, it is the

solemn duty of the Supreme Court to make indepen-

dent inquiry and determination of the disputed facts.

Whitus vs. State of Georgia, 385 U. S. 545, 17 L.Ed.

2d 599, 87 S. Ct. 643 (1967).

This Court has frequently observed that

whether a particular restriction will be rendered in-

valid by the governments failure to pay for any looses

caused by it depends largely ‘‘upon the particular cir-

cumstances” in that case. Penn Central Transporta-

tion Company vs. City of New York, supra, p. 2659.

Appellant submits that a review of the record in this

case will clearly support the determination of the trial

judge that Mr. Hernandez has been deprived of all

reasonable use of his property by the application of

the existing ordinance.

A review of the opinion of Third Circuit Court of

Appeal will demonstrate that it based its determina-

tion that Mr. Hernandez was not deprived of all

resonable use of his property under a R-1-A classifica-

tion on an isolated estimate as to the value of the

property made by appellant’s zoning expert and on

the opinion of the defendants’ expert real estate ap-

praiser. The record clearly shows that the guess as to

value by defendant’s zoning expert was explicitly

qualified by his testimony to the effect that he was

not an expert in real estate appraisal and also that

hecould be substantially off in terms of the dollar

figure which he would put on the property. (Tr. 1350).

With regard to the opinion of the City’s expert real

estate appraiser, the Third Circuit failed to take

cognizance of the gross defect in his analysis which

rendered his results inapplicable to the subject proper-

ty. The property utilized in Mr. Cope’s methods of

analysis were clearly shown to be totally inap-

propriate in determining land values on the subject

property. The trial court clearly recognized Mr.

Cope’s approach as an “apples and oranges’’ affair.

The evidence in this case clearly points out that

Mr. Hernandez’s property is chained to disuse under

its present classification. Mr. Cecil Trahan, the only

expert in real estate sales who testified at trial, stated

without contradiction that Mr. Hernandez would not

be able to use his property under the R-1-A classifica-

tion:

“Q@. Have you an opinion as to whether the

property can be economically developed for

townhouses, the subject property.

MR. TORIAN: In what classification?

BY MR. SIEMON, CONTINUING.

Q. Under the R-1-A Classification.

A. They could be pote my no question. But

I don’t think could be sold, economically

feasible to be sold. You could give it away, you

know. (Tr. 1464).

Q. Mr. Trahan, do you believe this property is

suited to be sold in the market as R1A proper-

ty?

A. No, I donot. (Tr. 1440).

Q. Mr. Trahan, as a developer, do you have an

opinion as to whether it could be developed

whether it could be economically feasible to

develop it under the R-1-A zoning?

A. My opinion is that it could be developed,

but because of the facts brought up earlier

> agp = it would be economically feasible.

-144]1).

The testimony at trial noted that the combina-

tion of the irregular configuration of the property, the

various easements which traversed the property, the

promixity of the sewerage plant, and the high volume

of traffic in the area rendered this property completely

unsuitable for an R-1-A classification. Even the city’s

own land use planning experts admitted that given

the present configuration of the easements on the

property, it would not be possible to develop this

property under a R-1-A classification. (Tr. 1702).

However, this fact also was ignored in the opinion of

the Third Circuit Court of Appeal.

Finally, the testimony at trial clearly showed

that the treatment of this piece of property by the

City of Lafayette through the years, specifically the

nature of the city’s treatment of the realignment pro-

ject through the property, would stymie development

under a R-1-A classification and result in the property

being taken out of commerce for many years to come.

(Tr. 1441).

It is beyond the scope of this jurisdictional

statement to completely set forth all of the factual

testimony which dictates the conclusion that Mr. Her-

nandez has been deprived of all reasonable use of his

property. However, the physical facts which have

been herein related truly dictate Mr. Hernandez be

given the opportunity to demonstrate to this Court

the continuing violation of his constitutional rights by

the City of Lafayette, Louisiana.

CONCLUSION

This appeal raises issues of critical and fun-

damental importance to the future of landowners’

ability to invoke the protection of the Constitution of

the United States against the tremendous potential

for abuse of the police power by a municipality. Mr.

Hernandez appeals to this Court for protection for

himself and for countless future landowners who face

the threat of governmental manipulation through zon-

ing prior to anticipated expropriation. To condone

such conduct by a municipality will be to authorize

the use of the zoning power as a substitute for the

right to just compensation under the Constitution.

This case goes far beyond potentially legitimizing the

City of Lafayette’s political maneuvers in an attempt

to win a lawsuit from a single individual. As the

evidence clearly showed, the defendants, their plan to

expropriate Mr. Hernandez’s property through zoning

being uncovered, freely manipulated the ordinance of

necessity for the realigmnemt project in order to

create a condition at trial which they felt would be

most favorable to their litigation posture. The years

of delay experienced by Mr. Hernandez in attempting

to have the property rezoned was solely due to an at-

tempt to take his property through zoning. The City’s

own documents established that the only two persons

who were denied a change in zoning in the South Col-

lege Road area in the last few years are Mr. Thomas

Green and Mr. Hernandez, both of whom “happened”

to own property which would have to be expropriated

when the realignment project came to fruition. (Tr.

1786; Exhibit P-8). To dismiss such facts as coin-

cidence is to ignore the reality of the evidence.

We respectfully submit that the Federal ques-

tions presented in this appeal are substantial and

deserving of a review. To deny review in this case will

be to legitimize the gross abuse of the police power

and to ignore the shield of protection afforded by the

Constitution.

RESPECTFULLY SUBMITTED:

JOSEPH ONEBANE

JOHN G. TORIAN, II

MICHAEL G. DURAND

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and

foregoing has been served upon Mr. Charles L. Siemon

of Ross, Hardies, O’Keefe, Babcock and Parsons, 1

IBM Plaza, Suite 3100, Chicago, Illinois 60611, by

placing same in the U.S. Mail, postage prepaid.

New Orleans, Louisiana, this 19th day

September, 1981.

JOSEPH ONEBANE

APPENDIX

A-1

NUMBER 8098

JAMES HERNANDEZ

Plaintiff-Appellee

Versus

CITY OF LAFAYETTE,

CITY COUNCIL OF LAFAYETTE

Defendants-Appellants

On appeal from the Fifteenth Judicial District Court,

Parish of Lafayette, State of Louisiana; the Honorable

Bradford Ware, Judge, Presiding.

Before: GUIDRY, CUTRER and LABORDE, Judges.

LABORDE, Judge.

Appellants, the City of Lafayette and the City

Council of the City of Lafayette appeal an adverse

judgment of the district court in an action for

declaratory and injunctive relief filed by James E.

Hernandez, appellee, challenging the validity ofthe

zoning ordinance of the City of Lafayette as it applied

to land owned by Hernandez. The trial court rendered

judgment in favor of Hernandez and directed the City

of Lafayette to rezone plaintiff's property from R-1-A

to B-1-0.

The issue on appeal is the validity of the zoning

ordinance of the City of Lafayette as applied to the

Hernandez property. We reverse the decision of the

A-2

trial court. The presumption of validity which at-

taches to legislative enactments can be overcome or

defeated only by proof that no competent evidence

has been adduced to support the result of the

legislature’s action. We find that the zoning decision

of appellants as it applies to the Hernandez property

is supported by substantial and competent evidence

adduced in proceedings which were regular and order-

" THE FACTS

On three (3) separate occasions beginning on

August 12, 1975, Hernandez sought to have his

property rezoned from R-1-A residential (single family

detached and townhouse) to B-1-M (medical office),

R-2 (apartments) and B-1-O (professional office). All

three (3) legislative attempts failed to become law

under the provisions of the charter of the City of

Lafayette. In his petition, Hernandez alleged that the

City’s failure to rezone his property as requested

violated the Louisiana Municipal Zoning Regulations,

LSA-R.S. 33:4721 et seq' and the constitutions of the

State of Louisiana and the United States.

1. LSA-R.S. 33:4721 provides:

For the purpose of promoting health, safety, morals, or

the general welfare of the community, the governing

authority of all municipalities may regulate and restrict

the height, number of stories, and size of structures, the

percentage of lot that may be occupied, the size of yards,

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; pro-

vided that zoning ordinances enacted by the governing

authority of municipalities or the acts of the zoning com-

mission, board of adjustment as herein provided for, or

zoning administrator shal] be subject to judicial review

A-3

The Hernandez property is a 16.7 acre higily ir-

regular tract of land located in the City of Lafayette

immediately south of the intersection of West Bayou

Parkway and South College Road. (See appendix ‘1”

attached hereto. The Hernandez property is shaded.)

The property located to the north, east, south, and

west of the Hernandez property is zoned R-1-A. To

the northwest, across West Bayou Parkway from the

narrow neck of the Hernandez property is a tract of

iand zoned R-2 which has been developed into

townhouses. A tract of land zoned B-1-M is located to

the northwest on the opposite side of South College

Road. To the east of the Hernandez tract is Coulee

Mine, a fifty foot drainage canal. To the south of the

Hernandez tract is the largest sewerage treatment

plant in the city of Lafayette. The sewer plant was

constructed prior to most of the development in the

neighborhood, including the Hernandez residence.

The property is traversed by a series of utility

easements. The property is currently improved with

two single-family detached residences, and has been

used for residential purposes for many years. The

Hernandez property is zoned R-1-A.

In his written reasons for judgment dated June

9, 1980, the trial judge concluded that:

“After reviewing the law and the evidence

Footnote 1 - Continued-

on the grounds of abuse of discretion unreasonable exer-

cise of the police powers, an excessive use of the power

herein granted, or the denial of the right of due process,

provided further, that the right of judicial review of a zon-

ing ordinance shall not be limited by the foregoing.”

to the promotion of the public health, safety,

ee se oe ee

City of Lafayet

On June 25, 1980, the trial court entered judg-

ment in favor of Hernandez and directed the City of

Lafayette to rezone the Hernandez property to B-1-O.

The appellants urge four (4) trial court errors:

“The trial court _ by exceeding the

er scope of judicial review by consi

evidence of motives of the city.

Tho total canst essed bey queending the p proper

scope of judicial review by substituting its

judgment ie that of the city’s.

The trial court erred by its findings of facts

which are so con to the manifest weight of

the evidence that t and the court’s ruling

are clearly erroneous.

The trial court erred in excluding expert,

testimony based on hearsay during defendants’

case.’

Assignments of error 1 and 2 will be considered

A-5

and discussed together. In view of our decision we

pretermit discussion of errors 3 and 4 assigned by ap-

pellant.

The validity of the zoning ordinance of the City

of Lafayette as applied to the Hernandez property is

the issue on appeal. We have previously stated that

the presumption of validity which attaches to

legislative enactments can be overcome or defeated

only by proof that no competent evidence had been ad-

duced to support the results of the legislature's ac-

tion. Clearly, we will not exceed that scope of review.

THE PROPER JUDICIAL SCOPE OF REVIEW

The standards or principles by which zoning

regulations are tested by Louisiana courts are well-

established. See, e.g., Four States Realty Co., Inc. v

City of Baton Rouge, 309 So.2d 659 (La.1975); State

ex rel. Civello v. City of New Orleans, 154 La. 271, 97

So. 440 (1923); West v. City of Lake Charles, 375 So.2d

206 (La.App.3rd Cir. 1979) writ refused, 378 So.2d 435

(La.1979); Trustees Under the Will of Pomeroy uv.

Town of Westlake, 357 So.2d 1299 (La.App. 3rd Cir.

1978), writ denied, 359 So.2d 205 (La.1978).

“It is well settled in our jurisprudence that

A enacted zoning ordinances are presumed

valid (Emphasis added).

West v. City of Lake Charles, 375 So.2d at 209.

Zoning, as a legislative power, is presumed valid

and one challenging a zoning enactment bears an

extrodinary burden to overcome the presumption of

validity. Village of Euclid vs. Ambler Realty Co., 272

J.S. 365 (1926); Four States Realty Co., Inc. vs City of

Baton Rouge, supra; and Henry vs. City of Monroe,

349 So.2d 1006 (La.App. 2nd Cir. 1977).

“The court will uphold the ordinance unless it is

clearly shown that the action of the governing

authority was arbitrary or unreasonable, or

that the action taken violated a provision of the

Constitution or of the enabling statutes.”’ Kirk

‘vs. Town of West Lake, 373 So.2d 601 at 602

(La.App. 3rd Cir. 1979), writ denied, 376 So.2d

1268 . 1979).

Doubtful cases will be resolved in favor of the

validity of the challenged zoning enactment. Four

States Realty Co., Inc. vs. City of Baton Rouge, supra;

and Kirk vs. Town of West Lake, supra.

And, in testing the validity of an ordinance, the

courts have nothing to do with the wisdom or good

policy of the ordinance. This judicial deference to

legislative discretion in the enactment of laws, zoning

or otherwise, is a cornerstone of the doctrine of separa-

tion of powers.

{ajlthough it has been indicated in some deci-

sions that a court may be given by statute

power to substitute its judgment for that of a

city government relative to zoning matters, a

statute so providing has been deemed un-

prea ssa a on 7 eee that the

legislative tions of adapting zoni

and laws may not be sestoatnadl ter the ji

department of government. Meyers vs. City of

Baton Rouge, 185 So.2d 278 (La.App. 1st Cir.

A-7

1966).

A challenge to a zoning decision in Louisiana is

not an appeal from the decision of a lower tribunal

wherein the Court scrutinizes the record below to test

the accuracy of the City’s decision; rather it is a de

novo proceeding which tests whether the result of the

City’s legislation (here the R-1-A classification) is ‘‘ar-

bitrary and therefore a taking of property without due

process of law.”” Westside Lumber & Supply v. Parish

of Jefferson, 357 So.2d 1384, 1385 (La. App. 4th Cir.

1978). In Meyers v. City of Baton Rouge, supra, the

First Circuit noted that even where no competent

evidence to support a zoning decision was adduced in

front of the governing body, the resulting legislation

will nevertheless be upheld if the result is supported

by evidence adduced at trial. The Meyers court ex-

plained:

“The initial action by appellants herein is not

an appeal but rather a suit attacking the validi-

ty of a duly adopted municipal

ordin-ance. . .” (at 281)

And

“that the hearings required are designed sole-

ly to afford interested parties an opportunity to

be heard before the governing authority makes

a decision under its police power. . . How,

when and where the local authorities gain

a of the subject matter is of no con-

cern to the courts. t is said at the required

public hearings is not necessarily the criteria of

reasonableness when an ordinance of such

nature is attacked as being arbitrary or

discriminatory. The test to be applied is

A-8

whether it is in fact arbitrary, unreasonable and

discriminatory in the light of all ettending cir

cums

tances.”

(at 282-83) (Emphasis added)

In Westside Lbr. & Supply v. Parish of Jeffer-

son, supra, the Fourth Circuit reversed a trial court’s

decision because it had applied the wrong test in

reviewing a local legislative zoning decision. The trial

court had ruled that the test was “simply to deter-

mine whether or not the board was acted arbitrary

.. and whether or not the decision of the board was

supported by substantial; and competent evidence ad-

duced in proceedings which were regular and orderly.”’

In reversing the trial court, the Fourth Circuit reaf-

firmed the distinction between review of adminis-

trative and legislative decisions of local government.

The proper test for legislative decisons is not whether

the board acted arbitrarily in light of the evidence it

had before it at the time of decision but whether the

resulting “legislation is so arbitrary and therefore a

taking of property without due process of law.”’

THE HERNANDEZ CHALLENGE TO THE

ZONING ORDINANCE

One challenging a zoning enactment has the dif-

ficult burden of proving to the Court that the existing

classification is unreasonable, that is, that it bears no

substantial relationship to the public health, safety,

morals or general welfare of the municipality. It is not

enough to show that the new zoning sought is

reasonable. West v. City of Lake Charles, supra. Nor

is it enough to show that reasonable men might reach

a different conclusion from that reached by the City,

A-9

Maher v. City of New Orleans, 516 F.2d 1051, 1061

(5th Cir. 1975), U.S. Cert denied 426 U.S. 905 because

courts do not substitute their judgment for that of the

legislative branch of government.

“But courts may not become virtual zoning

boards and it is not our function to judge the

zoning merits of the proposed c or the

wisdom of the Council in turning it down. We

may di with the a Director and

the Parish Council, and had we sitting on

the Par’sh Council we may have voted for the

change, but that is not to say that plaintiffs are

now as a matter of law enti to invalidate the

action taken by the Parish Council.”

Paternostro v. Parish of Jefferson, 289 So.2d 327, 331

(La. App. 4th Cir. 1973), writ refused, 293 So.2d 183

(La. 1974).

In our view the trial court failed to perform this

duty. The record contains substantial evidence to

support an objective determination that the property

should remain zoned R-1-A, residential, rather than be

rezoned under a commerical classification.

Evidence adduced at trial shows that rezoning

of the subject property from residential to commercial

could be incompatible with and have an adverse effect

on the surrounding areas. For one, the vast majority

of the developed land in the general vicinity of the

subject property is zoned residential. In fact, except

for the fifty-foot neck of plaintiff's property, the sub-

ject tract is surrounded by residentially zoned or

residentiaily used property. In this regard, there was

A-10

considerable testimony showing legitimate concern

that allowing a commercial intrusion into the residen-

tial neighborhood may initiate a chain of further com-

mercial rezonings thus destroying the neighborhood's

residential character. Plaintiff's own planning expert,

Dr. Dennis Ehrhardt, testified that such rezoning

would be likely to cause this so-called ‘domino

effect." His testimony was corroborrated by

testimony of Mr. Bert Landry, a former director of

city planning whose deposition was introduced into

evidence by plaintiff. Mr. Landry stated:

“The [city] would be hard pressed to deny

uses... it would the ultimate

ee of the area commercial.” (Tr. 1081)

Another adverse impact on the surrounding

area is the increased traffic congestion which would

result from a commercial rezoning of plaintiff's land.

The record in this regard shows that development of

the property for non-residential uses would produce

unsafe traffic conditions. For example, Mr. Richard

Gern, a traffic expert with 23 years of practical ex-

perience throughout the nation, testified regarding

the traffic impact of R-1-A, R-2, B-i-O and B-1-M zon-

ings of the subject property. Based on his analysis of

known trip generation rates adjusted to reflect local

traffic factors in Lafayette, Mr. Gern testified that un-

safe traffic conditions would result if the property

were developed as R-2, B-1-M or B-1-O. In contrast,

he testified that R-1-A would have no adverse impact

on adjacent roads because the traffic system had

available capacity for such uses. Mr. Gern further

testified that in crder to accommodate the traffic

generated by the more intense use classification,

A-1l1

substantial changes in the character of roads through

established neighborhoods would be required to the

substantial detriment of those neighborhoods. In

Gern’s opinion, such changes would have serious

adverse impacts upon the city as a whole. In addition,

any non-residential classification would substantially

decrease intersectional capacity and result in traffic

36% over design capacity which, according to Mr.

Gern, would undoubtedly lead to unsafe conditions.

Upon our review, we hold that the record in this

case does reveal a valid, objective basis upon which

the City of Lafayette could reasonably conclude that

retaining the R-1-A zoning classification of the sub-

ject property serves the public health, safety and

welfare.

Upon our finding that the City of Lafayette did

not act unreasonably in retaining the R-1-A zoning

classification, our inquiry continues. We now must

deterniine whether the City acted arbitrarily or in an

unconstitutional manner in refusing to reclassify

plaintiff's property.

That the City of Lafayette did not act arbitrari-

ly is evident from its zoning history, not only of the

area surrounding the subject property, but of other

areas throughout Lafayette as well.

The Director of Planning, the City’s Zoning Ad-

ministrator, an expert land use planner and a traffic

engineer testified in regard to the planning issues in-

volved in the R-1-A classification as applied to plain-

A-12

tiff’s property. According to the record the property

is located in a “planning” area circumscribed by

South College Road, Pinhook Road, the Vermilion

River, Brentwood Boulevard and Johnston Street.

Within that neighborhood are two high intensity use

corridors — one along Johnston Street and the other

along South College Road. The zoning history of the

vicinity of the subject property reveals that the

southern border of the high intensity zone along

South College - the boundary plaintiff asks the Court

to extend down West Bayou Parkway — has been in-

tact since 1963 and that the City has never waivered

in its treatment of the subject property.

Mr. W. Anthony Wiles, a land use planner with

18 years of experience in land planning and develop-

ment, after being qualified as an expert, described in

detail a series of zoning and planning analyses he con-

ducted. These analyses were based on an examination

of the zoning ordinances adopted by the City of

Lafayette, along with its zoning maps and all or-

dinances rezoning property since 1963. According to

Mr. Wiles this examination revealed several distinct

policies:

1. that the area of the subject property has

always been maintained as low density s

family residential with the South Collage of a high

intensity corridor along Sou

Johnston.

2. that the zoning actions of the City reflect a

very strong relationship between the arterial

network and major concentrations of commer-

cial development within the City.

very rarely been rezoned unless the action

would conform to the aforementioned policies.”

(Tr. 1652, 1654)

Appendix ‘‘2”’ graphically demonstrates that the Ci-

ty’s zoning decisions have been uniform in confining

commercial and business districts to frontage on the

City’s arterial road network.

Mr. Wiles’ study also showed that South Col-

lege has been designated for high intensity uses since

the area was annexed into the city. Moreover, the

natural boundary at the intersection of West Bayou

Parkway and South College between the high intensi-

ty corridor and the R-1-A district has not waivered in

17 years.

We find the City’s denial of rezoning in the in-

stant case to be consistent with its prior land use

policies. Hence, we hold that the City did not act ar-

bitrarily.

We next determine whether the City’s action

denies plaintiff due process by depriving him of all

beneficial use of his property.

Louisiana courts have held that a regulation

which deprives a landowner of all beneficial use of his

A-14

property deprives him of his property without due

process of law. Hardy v. Mayor and Board of

Aldermen et al, 348 So.2d 143 at 149 (La. App. 3rd Cir.

1977), writ refused, 350 So.2d 1212 (La. 1977); Dufau

uv. Parish of Jefferson, 200 So.2d 335, 337 (La. App.

4th Cir. 1967). However, the fact that a zoning or-

dinance does_not permit an owner the most advan-

tageous economic use of his land does not render the

ordinance invalid. West v. City of Lake Charles,

supra.

Applying the above principles to the instant

case, we hold that plaintiff failed to show that the sub-

ject property has no practical use under the present

R-1-A classification. In fact, plaintiff's own witnesses

established the utility and value of the property for

development under the R-1-A classification. For ex-

ample, Dr. Ehrhardt testified that, based on his

familiarity with the housing market in Lafayette and

his experience in real estate, the property is worth at

least $1,000,000. In addition, the City’s expert ap-

praiser, the only appraiser who testified as to land

values, stated that his analysis (based on two separate

appraisal approaches) indicated a value of $75,000 per

acre which equals approximately $1,180,000 for the

tract excluding the site of the Hernandez home.

In conclusion, our review of the record con-

vinces us that the plaintiff has failed to meet his

burden of proving that the City’s classification of the

property was unreasonable, arbitrary, or a denial of

due process. Further, we do not find that there has

been an abuse of discretion or excessive use of power

A-15

by the City in refusing to rezone the Hernandez

property.

For the foregoing reasons the judgment of the

district court is reversed and set aside.

It is now ordered adjudged and decreed that

plaintiff's suit against defendants be dismissed with

prejudice. All costs in the trial court as well as the

costs of this appeal are assessed against the plaintiff.

REVERSED AND RENDERED.

OFFICE OF CLERK

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

P. O. Box 3000

Lake Charles, La. 70602 ¥

NOTICE OF JUDGMENT

Gentlemen:

Attached you will find a copy of the judgment

of this Court in a case in which you are an attorney of

record.

Your attention is invited to Rule XI of the

Uniform Rules of the Courts of Appeal, as amended,

effective January 1, 1978, regulating applications for

rehearing.

Notice especially that Section 1 provides the

A-16

delay for applying for a rehearing shall commence

with the mailing by the Court, rather than receipt by

counsel, of notice of judgment, and that the delay

shall be 30 days, rather than 14 days.

Also, please note that Article 2166 of the Code

* of Civil Procedure, as amended by Act 179 of 1977, ef-

fective January 1, 1978, provides that it is no longer

necessary to apply to the Court of Appeal for a rehear-

ing as a prerequisite to applying to the Supreme Court

for writs.

Cordially yours,

KENNETH J. deBLANC

Clerk of Court

CC: Suit Record

(NOTE: Office hours are 9:00 A.M. to 5:00 P.M. for filings).

March 26, 1981.

B-1

COURT OF APPEAL, THIRD CIRCUIT

State of Louisiana

JAMES HERNANDEZ

Vv. No. 8098

CITY OF LAFAYETTE

BEFORE: JUDGES Guidry-Cutrer-Laborde

ORDER

The Application for Reheering herein having

been duly considered:

IT IS ORDERED that a Rehearing be, and the

same is hereby, denied.

Lake Charles, Louisiana, this 8 day of May,

1981.

E.L.G., Jr.

C.C.C.

P.J.L., Jr.

Judges

/S/ Marie D. Hawkins

Clerk

Port No. 975

A TRUE COPY

Lake Charles, La.

Sept. 8, 1981

/S/ Kenneth J. deBlanc

Clerk, Court of Appeal,

Third Circuit

C-1

THE SUPREME COURT OF THE

STATE OF LOUISIANA

JAMES HERNANDEZ

VERSUS No. 81-C-1471

CITY OF LAFAYETTE,

CITY COUNCIL OF LAFAYETTE

Re: James Hernandez, applying for

Certiorari, or writ of Review, to

the court of Appeal Third Cir-

cuit, Parish of Lafayette,

Number 8098.

June 22, 1981

Writ denied.

FAB

JAD

PFC

WFM

JLD

JCW

Su Court of Louisiana

June 22, 1981

/S/illegible

Clerk of Court

For the Court

D-1

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE

STATE OF LOUISIANA

JAMES HERNANDEZ

VERSUS

: DOCKET NUMBER: 78.0381-A

THE CITY COUNCIL OF LAFAYETTE

THE CITY OF LAFAYETTE,

ITS ELECTED OFFICIALS,

EMPLOYEES AND AGENTS

JUDGMENT

This cause having been duly heard and submit-

ted to the Court for adjudication, the Court, upon con-

sidering the law and evidence and finding same to be

in favor of plaintiff and against the defendants for the

reasons assigned in the written opinion of this Court

dated June 9, 1980;

IT IS ORDERED ADJUDGED AND

DECREED that there be judgment herein in favor of

plaintiff, James E. Hernandez and against defen-

dants, The City Council of Lafayette and the City of

Lafayette, Louisiana, and that a mandatory injunc-

tion be and is heveby issued as prayed for, directed to

the City of Lafayette, Louisiana, through its elected

officials, agents and employees to forthwith rezone

and reclassify the immovable property owned by

plaintiff from R-1-A (Single Family Residence) to

D-2

B-1-O (Office District Special); said property being

described as follows:

pee re on yo south TL: ores

mete the sooteriy by, Coulee Sewerage Treat

sou -

ment 4 and Andrus Investments and

westerly by West Bayou Parkway, said tract

containing 16.7 acres more or less

IT IS FURTHER capes. ADJUDGED

AND DECREED that wh. of Lafayette, Loui-

siana, through its Cit its elected officials,

ompreete and agents my Sey are hereby ordered

to adopt in a with the applicable rules and

- oi for the adoption of ordinances, an or-

Basnee which will the Comprehensive —_

Ordinance of the of Lafayette, aoe 5

dinance No. 0-191, pA the pro e Fam oO

E. Hernandez from Rin Sie (Single nly Residence

2B-1-0 (Office District Specialh” &

exactly track the of Ay pono ——

No. 1785 past by the a City Council on May 8,

1979. The ordinance s read as follows:

Ordinance No. : Ordinance amend-

ing the Comphrensive Zone Ordinance, or-

y Rong Pre mm No. 0-191, so as to

reclassify

~ the p y of James Hernandez, bounded by

South Road, Coulee Mine, West Bayou

Parkway and South Sewerage Treatment t

access road from R-1-A_ (Single Family

Residence) to B-1-O (Office District-Special).

BE IT ORDAINED by the City Council of

the City of Lafayette:

SECTION 1: Ordinance No. 0-191 is

D-3

hereby amended so as to reclassify the property

of James Hernandez bounded by South College

Road, Coulee Mine, West Bayou Parkway and

South Sewerage Treatment Plant access road.

(As shown on plat on file with the zoning com-

mission), from R-1-A (Single Family Residence),

to B-1-O (Office District-Special).

SECTION 2: This reclassification shall

become effective upon the submission by the

land owner to the zoning commission of a site

plan which meets all the pertinent requirements

of the Comprehensive Zoning Ordinance

relating to a B-1-O district.

SECTION 3: All ordinances or resolutions

or parts thereof in conflict herewith are hereby

repealed.

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that upon passage of the aforemen-

tioned ordinance by the City Council, the Mayor of the

City of Lafayette shall take all necessary actions as re-

quired by law to insure timely and prompt inactment

of the amending ordinance.

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that the City of Lafayette, Loui-

siana is assessed all taxable costs herein.

JUDGMENT READ, RENDERED AND

SIGNED in Open Court this 25th day of June, 1980,

at Lafayette, Louisiana.

SUBMITTED BY:

ONEBANE, DONOHOE,

BERNARD, TORIAN, DIAZ

McNAMARA & ABELL

(A Professional Law Corporation)

By:

JOHN G. TORIAN, II

By:

MICHAEL G. DURAND

APPROVED AS TO FORM ONLY

ROSS, HARDIES, O'KEEFE,

BABCOCK & PARSONS

By:

CHARLES SIEMON

(filed June 25, 1980)

Charles Siemon

John G. Torian, II

Michael G. Durand

E-1

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE

STATE OF LOUISIANA

JAMES E. HERNANDEZ

VERSUS NO.78,0381-A

THE CITY COUNCIL OF LAFAYETTE

THE CITY OF LAFAYETTE, ITS

ELECTED OFFICIALS, EMPLOYEES

AND AGENTS.

RULING

Trial of this matter was had on January 3 and 4,

1980 and February 5-8, 1980. After reviewing the law

and the evidence and hearing the arguments of

counsel, the Court finds the denial of the rezoning of

the Hernandez property to have been an arbitrary,

capricious, unreasonable and excess use of the police

power. In addition, this Court finds this denial of

rezoning bears no substantial relation to the promo-

tion of the public health, safety, morals or general

welfare of the citizens of the City of Lafayette.

The facts of this controversy commenced in

August of 1975 when Mr. James E. Hernandez first

requested that the City of Lafayette rezone his 16.7

acre parcel of land situated on the corner of South Col-

lege Drive and the intersection of West Bayou

Parkway from R1A “residential’’ to B1M “medical

office’.

E-2

Thereafter, the evidence indicates that the City began

to plan a realignment of South College Drive and

West Bayou Parkway which would necessitate the ex-

propriation of at least part of the subject Hernandez

property.

However, in November of 1975 the Mayor of the

City of Lafayette announced that the realignment

project was ‘‘abandoned’’. In December of 1975, the

City of Lafayette, through their Director of Public

Works, sought to negotiate with Mr. Hernandez for

the dedication of properties for alternative intersec-

tional changes rather than expropriation for the

“abandoned”’ realignment project. The ordinance to

rezone Mr. Hernandez’s property was then introduced

and discussion commenced. Numerous city officials

as well as Councilman Benny Ritchey stated that the

zoning request should be denied because to grant this

wou'd cause the City to pay more for the Hernandez

property when the right of way ‘the West Bayou

Parkway Realignment) was created. The Council

sometime thereafter denied the first request for rezon-

ing

On August 9, 1977 the plaintiff filed a second re-

quest for rezoning from R1A to an R2 classification.

The City Planning Commission recommended the

change to R2 be granted by the City Council.

Thereafter, the City Council appropriated funds for an

engineering feasibility study for the West Bayou

Parkway Realignment. The City Council then tabled

Mr. Hernandez’s second request for rezoning until the

City of Lafayette determined which route proposed

realignment would take.

E-3

The instant lawsuit was filed on February 3,

1978. The Council then voted to rezone Mr. Her-

nandez’s property to R2. The Mayor then vetoed the

vote of the City Council, and the Council failed to

override the Mayor’s veto. Some time later the City’s

attorney commenced negotiations with the Her-

nandezes for a settlement of the pending lawsuit. A

trial date of February 7, 1979 had been obtained. On

the same date a document comprising a settlement

agreement was signed by both the City Council and

the Mayor. The plaintiff then upset the trial date.

Less than one (1) month later the Mayor refused to

sign the formal compromise agreement which would

have terminated the pending lawsuit.

Mr. Hernandez then appeared before the

Lafayette City Council for his third request for rezon-

ing from R1A to B10 which would have been compati-

ble with the City’s pending realignment project. The

City Council again voted to rezone the plaintiff's

property and once again the Mayor successfully

vetoed their decision.

Thereafter, the City upon advice of its legal

counsel (as admitted by numerous City officials) that

it’ would in all probability lose the lawsuit unless the

realignment project were dropped, repealed Ordinance

No. 0-1759 which had declared the realignment

project a ‘‘necessity’’. Evidence abounds that the or-

dinance was repealed solely due to the pending lawsuit

instituted by Mr. Hernandez. Furthermore, no

substantive evidence was adduced at the trial to sup-

port the repeal of this ordinance other than the threat

E-4

of losing the plaintiff's suit against the City of

Lafayette. The City’s legal counsel repeatedly warned

the City, as admitted by several of the Council

members not to use their zoning powers as a leverage

device to obtain rights of way for City improvement

projects. Nonetheless, the City proceeded in its course

of action and repealed the ordinance of necessity in a

final attempt to win the lawsuit instituted by Mr. Her-

nandez.

This Court finds that the City acted

unreasonably, arbitrarily and capriciously and

thereby denied Mr. Hernandez due process for many

reasons. Firstly, the denial of rezoning of the Her-

nandez property was shown to be inconsistent with

the prior land use policies of the City of Lafayette.

Justice demands the uniform treatment of applica-

tions for zoning changes by any municipality granted

the authority to promulgate such regulations under

the auspices of LSA-R.S. 33:4721. The evidence in-

dicated that the only two persons who were denied

rezoning in the high intensity corridor in the South

College Drive neighborhood were Mr. Thomas Green

and Mr. James Hernandez. At least a part of both of

these men’s praqperty would be expropriated if the

West Bayou Parkway realignment project was ‘‘resur-

rected”. (This Court finds this project only dormant

and not dead at all!)

In addition, this Court found both West Bayou

Parkway and South College Road to be arterials.

Defendant's contention that West Bayou Parkway is

a collector was simply unsupported by the evidence.

Furthermore, the Court found the subject Hernandez

E-5

property to be part of the South College Drive

neighborhood even though only a small portion of the

property actually fronts on South College Drive. Prior

to the institution of the plaintiff's lawsuit all

documents and testimony establish that even the City

Planning Commission included the subject property

in the South College Drive neighborhood and

classified West Bayou Parkway as an arterial. Thus,

the rezoning of the Hernandez property to a commer-

cial classification would be perfectly compatible with

the surrounding property.

The City Council could not have justifiably

established that the rezoning of the Hernandez

property would have an adverse impact on the

neighborhood. A sewer plant which abuts the Her-

nandez property and which fronts entirely on West

Bayou Parkway must certainly be classified as a light

industrial use. A townhouse project zoned R2 is

across from the Hernandez property on the West

Bayou Parkway side and a B1M medical complex

faces the Hernandez property on South College Drive.

Defendant's argument that a domino-like effect would

occur if the Hernandez property were rezoned causing

an intrusion into residential areas is without merit. As

plaintiff pointed out, the Offshore Logistics Building

is a perfect example of an attractive office building

which is in harmony with the residential area in which

it i situated. The Surgery Cenier, the 515 Building

and numerous other large commercial establishments

form part of the high intensity corridor along South

College Drive. The construction of such large office

complexes indicate the great need in Lafayette for

E-6

commercial office space.

Thirdly, the plaintiff amply demonstrated that

no major adverse impact on traffic would occur if the

Hernandez property was rezoned. Much of the traffic

problem has been alleviated due to the intersectional

changes already accomplished at this crossroads and

no experts were able to determine exactly what the

impact of a residential development (R1A) would have

on the traffic problem. Most importantly, any kind of

development which the plaintiff would create will

have an effect on traffic. The City has alternative

methods of West Bayou Parkway rather than the

denial of rezoning the Hernandez property.

Lastly and most importantly, to deny the rezon-

ing of the Hernandez property is to deny Mr. Her-

nandez all practical use of his property besides that of

his own personal residence. No evidence indicated a

suitable plan for the development of this tract under

the existing R1A classification. This Court is well

aware that municiplities are not required to rezone

property to insure that its owner receives the max-

imum economic potential from its development.

However, to prevent the development of prime proper-

ty in Lafayette where land is at a premium does not

appear to have as its basis a valid legislative objec-

tive.

The plaintiff clearly showed that the plans for

development submitted by defendants were ludicrous

at best. Firstly, there are no R1A townhouse

developments in the City of Lafayette at this time.

E-7

Nor are there any exclusive residential developments

surrounded by berms. The development costs,

especially the removal of the existing easements,

make all but commercial development an impossibili-

ty. Additionally, defendant’s proposals for develop-

ment failed to meet the requirement for adequate in-

gress and egress for fire protection. Perhaps the

greatest drawback to R1/ development is the sewage

treatment plant. Certain frontage on an industrial

sewerage plant will be a gross detriment to the

development of an exclusive residential area. The

heavy traffic on South College Drive would be a fur-

ther deterrent to those persons desiring an exclusive

residential neighborhood. Defendant’s argument that

Bendel Gardens, an exclusive residential develop-

ment, faces the sewerage plant is without merit.

Bendel Gardens has always been identified as a

separate entity entirely from the South College Drive

neighborhood and/or the Greenbriar area. Thus, the

City’s refusal to rezone the plaintiff's property

amounts to a denial of all practical use of his property

for development.

Plaintiff has carried his burden of proof. Neither

party has established that the denial of rezoning of

the Hernandez property bears a substantial relation

to the promotion of the health, safety, morals or

general welfare of the City of Lafayette. The only

benefit shown was that of a lower price to be paid by

the City when the Hernandez property was ex-

propriated. We find the facts of this case substantial-

ly on point with the facts of Plebst v. Barnwell Drill-

ing Co., 243 La. 874, 148 So.2d 584. No one act by the

E-8

City Council or the Mayor would have been sufficient

to demonstrate a confiscatory scheme or an attempt

to win a lawsuit by political maneuvers. However, the

repeated denial of rezoning the Hernandez property,

combined with the City’s experts advising the

passage of the requested zoning change and the

statements made by the Council members themselves

clearly show a scheme by which Mr. Hernandez’s

rights were denied. The power of a municipality to ex-

propriate and the regulatory zoning functions per-

formed by a political subdivision are entirely separate

functions and should be kept so. The evidence in this

case is clearly to the contrary.

Therefore, the Court grants the relief requested

by the plaintiff and finds that the property should be

rezoned to B10.

All costs of these proceedings are to be borne by

defendants.

An appropriate judgment conforming hereto

will be signed upon presentation.

THUS DONE AND SIGNED in Chambers at

Crowley, Acadia Parish, Louisiana this 9th day of

June, 1980.

/S/ illegible

DISTRICT JUDGE

CERTIFICATE

I certify that a copy of the above and foregoing

has been mailed to each attorney of record on this

10th day of June, 1980.

Secretary

F-1

IN THE THIRD CIRCUIT COURT OF APPEAL

FOR THE STATE OF LOUISIANA

JAMES E. HERNANDEZ, Appellant

VERSUS NUMBER 8098

CITY OF LAFAYETTE, CITY

COUNCIL OF LAFAYETTE, Appellees

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that JAMES E. HER-

NANDEZ, the appellant aboved named, hereby ap-

peals to The Supreme Court of the United States from

the final judgment of the Third Circuit Court of Ap-

peals for the State of Louisiana, which judgment

dismissed appellant’s suit against appellees seeking

declaratory and injunctive relief from the

maintenance of a zoning ordinance affecting ap-

pellant’s property which deprived petitioner of his

rights to due process and just compensation

guaranteed him under the Fifth and Fourteenth

Amendments to the Constitution of the United

States. Said judgment reversed the judgment of the

Fifteenth Judicial District Court in and for the Parish

of Lafayette, State of Louisiana. Said judgment was

rendered by the Third Circuit Court of Appeal on

March 26, 1981. Appellant’s timely application for

rehearing in that Court was filed on April 23, 1981 and

denied on May 8, 1981. The judgment became a final

judgment or decree rendered by the highest court of

the State of Louisiana in which a decision could be had

and therefore appealable to The Supreme Court of the

F-2

United States on June 22, 1981 when the Louisiana

Supreme Court denied appellant’s timely Application

for Writs of Certiorari or Review filed on June 5, 1981.

This appeal is taken pursuant to the provisions

of 28 U.S.C. Section 1257(2).

ONEBANE, DONOHOE, BERNARD, TORIAN,

DIAZ, MCNAMARA & ABELL

(A Professional Law Corporation)

Fs :

JOHN G. TORIAN, II

By:

MICHAEL G. DURAND

P.O. Drawer 3507

Lafayette, La. 70502

(318) 237-2660

Attorneys for James E. Hernandez, Appellant

AFFIDAVIT OF SERVICE

BEFORE ME, the undersigned Notary, -

sonally came and ap MICHAEL G. DURAND,

who did declare and say that a copy of this Noticeof

Appeal to The Supreme Court of the United States

has been this date mailed to cpeseing counsel, Mr.

Charles K. Siemon, One IBM Plaza, Suite 3100,

Chicago, Illinois 60611 by depositing same in a United

States post office mailbox, first class postage prepaid.

SWORN TO AND SUBSCRIBED before me,

Notary, this 22nd day of July, 1981.

/S/ illegible

NOTARY PUBLIC IN

AND FOR THE PARISH

OF LAFAYETTE, STATE

OF LOUISIANA

G-1

PERTINANT PORTIONS OF THE

ZONING ORDINANCE OF THE CITY

OF LAFAYETTE, LOUISIANA

ORDINANCE 0-191

AN ORDINANCE to amend and re-enact Ordinance

927, Commission Form of Government Series, City of

Lafayette, Louisiana and all zoning ordinances

preceding same, as amended, entitled:

““AN ORDINANCE ZONING CERTAIN SEC-

TIONS OF THE CITY OF LAFAYATTE,

LOUISIANA, ESTABLISHING PENAL-

TIES FOR THE VIOLATION OF SAID OR-

DINANCE AND REPEALING ALL OR-

DINANCES IN CONFLICT THERE WITH:”

so as to change and amend the old regulations and

districts and define and set up new regulations and

districts in order to regulate and restrict the size of all

buildings and other structures, the percentage of lot

that may be occupied, the size of yards and other open

spaces, the density of population, the location and use

of buildings, structures and land for trade, industry,

residence, or other purposes and for) said purposes

divide the City into districts; to regulate and restrict

the erection, structural alterations or use of buildings

or land therein; to provide for the change of such

regulations, restrictions and boundaries of zones; to

provide for enforcement and penalties for the viola-

tion of its provisions; all in accordance with and under

the authority of the provisions of the Revised

Statutes of 1950, Title 33; Section 4721 through 4730.

G-2

WHEREAS, the City Council of the City of Lafayette,

Louisiana, deems it necessary in order to lessen con-

gestion in the public streets, to secure safety from fire,

to promote health, safety and morals, and the general -

welfare, to provide adequate light and air; to avoid un-

due concentration of population; to facilitate adequate

transportation, water supply, sewerage, schools,

parks, and other public requirements; to conserve the

value of buildings and encourage the most ap-

propriate use of land throughout the City in accor-

dance with a comprehensive plan;

BE IT ORDAINED, by the City Council of the City of

Lafayette, Louisiana, in regular session convened,

that Ordinance 927, Commission Form of Gvernment

Series, City of Lafayette, Louisiana, and all zoning or-

dinances preceding same, as amended, be and the

same are hereby amended and re-enacted so that as

amended and re-enacted the same shall read as

follows, to wit:

ARTICLE I - SHORT TITLE

This Ordinance shall be known, referred to, and

recited as the 1971 Zoning Ordinance, as amended.

ARTICLE III - ESTABLISHMENT OF

DISTRICTS

SECTION 1- LIST OF DISTRICTS: For the purpose

of promoting the public health, safety, morals, and

general welfare of the community, the City of

Lafayette is hereby divided in the following districts:

G-3

R-1A - Single-Family Residence (8,500 square

feet per dwelling unit)

R-1B - Single-Family Residence (7,000 square

feet)

R-1C - Single and Two-Family Residence

(4,500 and 5,000 square feet respec

tively)

R-2 - Multi-Family Residence

R-3 - Mobile Home Park District

R-4 - Condominium and Town House District

R-1-M- Business District (Medical)

R-1-O- Business District (Office)

B-N - Neighborhood Business District

B-T - Transitional Business District

B-G - General Business District

C-B-D- Central Business District

I-1 ~- Light Industrial District

I-2 - Heavy Industry

SECTION 2 - SPECIAL DISTRICTS: The zoning

districts ap ing below are ial in that they are

created as needed by the amendment procedure as set

forth in this Ordinance and require approval by the

Commission.

B-1-O Office District - This type of district is

designated to allow property in trasitional

areas and other areas to be used for the provi-

sion of office space. For the purpose of this sec-

ion, a transition area is de as one which

lies between a district zoned for commercial use

and one zoned for residential use. A district of

this type is special in that it is to be created as

needed through the amendment procedure as

set forth in this ordinance upo: ition of the

property owner. A zoni ification of this

type shall not be granted unless the site plan

meets with the approval wh tenn Je mmr

Commission or its designated agent. Al

G-4

the use of the B-1-O Office District Classifica-

tion is not limited to transitional areas, its use

in those areas is inasmuch as to it

serves as an_ ideal _ buffer be-

tween the residential and commercial or

business classification.

a. Permitted Uses

1. Offices for the purpose of rendering -

fessional ‘and Semi-professiona] client

oriented services. 1 retail and whole

sale activities which require the receiv-

ing, stocking, storing, displaying, manu-

facturing, salien, or renting of merchan-

dise or 7 ipment is expressly pro-

hibited. services shall be rendered

within offices and use of any portion of

the outside area for the performence of

services shall be expressly prohibited.

b. Area and Yard Requirements

¥ Minimum Lot Area - none

2. Minimum Yard Requirements

a. Front Yard - 20 feet

b. Rear Yard - 20 feet

c. Side Yard - 20 feet

Said yard requirements shall be met with

the exception that where rear and side

yards of the property in question abut a

commercially zoned district the respec-

tive yard requirements of said commer-

cially zoned district may be used.

3. Open Space

a. n yard space must equal 20%

of the lot area with the remaining

80% reserved for building(s),

driveways, and parking with the

exception that 10 feet of the re-

quired front, side and/or rear

yards may be used for parking pro-

G-5

vided that a 10 foot planted green

area x. maintained peep the

property in question jacent

wagers. Re te pepeete otis

section, a area

be defined as one which is sodded

and planted with , shrubs, or

trees which shall be maintained in

a manner not obstructing sight

distance for vehicles entering or

leaving the parking area.

4. Parki -—

a. e king totaling

squate feet taal be provided for

every 200 square feet of building

area.

5. Signs

The building containing the offices may

be identified by no more than two signs.

Only one sign shall be displayed on any

given side of the building. Said signs

shall be displayed flat against the

building, s not be free standing and

neither sign shall exceed eight (8) square

feet in area. Self-illuminated signs are

expressly prohibited.

ARTICLE V - SCHEDULE OF ZONING DISTRICT

REGULATIONS

The Schedule of regulations and the notes appended

thereto, included herewith, appl ing to the uses of

land and building, the height of buildings, the

coverage of lots, the yards and other open spaces, and

all other open spaces to be provided contiguous to or

in connection with buildings, the area of lots, off-

street parking spaces, and all other matters contained

therein, as indicated for the various districts

established by this Ordinance, are hereby ted and

declared to be a part of this Ordinance ye a

amended in the same manner as any other part of this

Ordinance. The regulations listed for each district as

G-6

designated, reading from left to right across the

schedule, and in all notes a thereto, are

hereby adopted and prescribed for such district, sub-

ject to the provisions of Articles V and VI of this Or-

dinance, and unless otherwise indicated, shall be

deemed to be the minimum requirements in every in-

stance of their application.

ZONING DISTRICT: ;

R-1A Single-Family Residence

PERMITTED USES:

Acessory use, art gallery or museura, church

(including associated uses), condomin.um, day

nursery, dwelling (single-family), electric

substation, farming (on five acres or more), fire

station, gas regulator station, golf course (ex-

t dri range, pitch and pull or miniature

g cowed, home occupation, kindergarten,

brary or reading room, nur (horticulture),

parks and playgrounds, pipeline or electric

transmission line, railroad right-of-way, recrea-

tional facility (privately owned and operated in-

cluding individual and community swimming

pools, tennis clubs, non-commercial community

centers and similar uses), schools (elementary,

secondary, public, and private (including

associated uses and structures), sewer pumping

station, telephone exchange, town house, water

pumping station, water storage.

MINIMUM LOT AREA:

8,500 square feet per dwelling unit

MINIMUM YARD REQUIREMENTS:

Front - 20 feet

Side - 5 feet per side

Rear - 10 feet

mn -QOpen yard space must

an | fifty ag nt of lot area =

remaining fifty percent reserv

for buil s) and parking. Open

space s be at least partially

G-7

planted in grass or other plant-

ings.

ZONING DISTRICT:

R-2 Multi Family Residence

PERMITED USES:

Same as R-1C plus boarding house, club or

] (private), college or university dormitory,

dwelling (multi-family), fraternity or sorority

house, storage garage, and tourist home.

ae LOT my sarap P p ,

,500 square feet per dwelling for single-family

residences

5,000 square feet per dwelling for two-family

oy ulti-family dwellings, 4,000 f

or multi-family dwellings, 4, square feet

for first two — & plus 500 square feet for each

additional unit.

For condominiums and Townhouses, 3,000

square feet per dwelling unit.

MINIMUM YARD REQUIREMENTS:

Front - 20 feet

Side - 5 feet per side

Rear - 10 feet

equal thirty percent reserved for

building)s) and parking. For

dominiums, and town houses,

open yard, space must twen-

ty percent of lot area with remain-

ing eighty perceant reserved for

building(s) and ing. Open

shall be a least partially

ted in grass or other plant-

ings.

G-8

ZONING DISTRICT

B-1-M Business District (Medical) (Special)

PERMITTED USES:

Professional offices - dentists, physicians,

psychiatrist, physiotherapists, surgeons, or

ctitioners in related specialities, clinics-

ntal or optical; laboratories - dental, medical

or optical.

MINIMUM LOT AREA:

None

MINIMUM YARD REQUIREMENTS:

Front - 20 feet

Side - None

Rear - None i

Open - Open y space must

ee =

remaining y percent reserv-

ed for ing(s), and Open

ce shall at least ially

planted in qrane or other p tings.

ZONING DISTRICT:

B-1-O Office District (Special)

—

ces for of ren rofessio

retail or wholesale activities which require =

receiving, stocking, s , displaying, manufac-

ing, selling, or — of merchandise or co

ment is ——_e ited. All services

rendered within and use of any portion of the

outside area for the performance of services shall be

expressly prohibited.

MINIMUM LOT AREA:

None

MINIMUM YARD REQUIREMENTS:

Front - 20 feet

th the remaining ty percent

soomeved for building's iveways

and

ten eye nt, side

Dm pony for

ro that a ten foot

Planted ace is maintained between

in question and adjacent

property. For the purpooes of hs

green area shall

defined as one which is sodded and

planted with grass, shrubs, or trees

which shall be maintained in a man-

ARTICLE XI — AMENDMENTS AND

PETITIONS

SECTION 1 - INITIATION OF AMENDMENTS:

The City Council may, from time to time, amend, sup-

e=. or change the regulations, restrictions, or

daries herein or subsequently established. Such

amendment, supplement, or change may be initiated:

1. By action of the City Council itself by introduc-

tion of an ordinance or by adoption of a motion.

2. By recommendation of the Planning Commis-

sion.

3. By Petition of property owners.

Such amendments shall be effective onl a om

prescriptions as set forth herein are subscri

SECTION 2 - FINAL REPORT FROM ZONING COM-

MISSION REQUIRED: The City Council shall take no

G-10

men ee nor shall amendment to this

ordinance effective until City Council has

received the final report of the Zoning Commission.

Said report shall contain the recommendation of the

Commission relative to the amendment and its

reasons for making such a recommendation. The

report shall be filed with the Cit Coens Some See

five (45) days after the date of the public hearing held

to consider the amendment. Failure to do so shall con-

stitute cause for the City Council to take action on the

a independent of the receipt of the final

report.

SECTION 3 - PUBLIC HEARING REQUIRED:

The Zoning Commission shall not file a report recom-

mending amendments to this ordinance, nor shall the

City Council take amendatory action, nor shall any

amendment be effective unless the commission has

held a public hearing upon the proposed amendment

at which parties in interest have an ay to be

heard. Said hearing may be called by ing Com-

mission upon its own initiative; additionally it be

called upon direction of the City Council or upon

receipt of a petition from a property owner.

SECTION 4 - NOTIFICATION OF PUBLIC HEAR-

ING REQUIRED: No public hearing shail be held to

consider a proposed amendment to this ordinance

unless notification of said hearing is given in accor-

dance with the prescriptions set forth as follows:

A. Hearing to Consider Proposed Amendment In-

itiated by the City Council or the Zoning Com-

mission. Notice of the time and place of a hear-

ing called to consider a proposed amendment of

this ordinance initiated 4 a

sion or the City Council be pu once

a week in three different weeks in the official

journal of the City of Lafayette and at least fif-

teen (15) days shall —_ between the first

publication and date of hearing.

B. Hearing to Consider Proposed Amendment In-

G-11

itiated by Petition of a Property Owner.

Notification of a hearing to consider an amend-

ment to this ordinance by a property owner

must be given as follows:

%, Notice of the p change and of the

time and place of the hearing shall have

been published once a week in three dif

ferent weeks in the official journal of the

City of Lafayette. At least fifteen (15)

ows be elapse between the first

publication and the date of the hearing.

2. Notice of the proposed amendment and

the time and place of the hearing shall

dee felts i aaties tates orcas

s before public hearing to each

pny owner within five hundred feet

ft.) from the boundaries of the area

of the proposed change.

3. A sufficient number of printed notices in

bold a be posted for not less

than (15) days prior to the hearing

before the Commission, on signs not less

yn one foot nor ~~ than two

square feet in area on property

peepess for a change in Zoning

ssification. Said signs shall contain

an accurate statement of the proposed

change and also the time and place of the

public hearing.

Na a a a one FOR why pa ntraded §

: on by a owner for an

ment to this ordinance shall be fled with the City

Council through Zoning Commission. In filing

i seater paammeeamaa raat

A. Hearings on petitions for amendments to this

ordinance will be held at least three times

ly. Dates of said meetings will be at the

tion of the Lafayette City Zoning Commission.

G-12-

Action will be taken on petitions which; have

been filed at least sixty (60) days prior to the

date of a scheduled ing. (This ph

reads as amended, effective October 9, 1978).

No petition for an amendment to change a zon-

ing classification shall be filed unless such peti-

tion is duly signed and acknowledged by the

owner, or authorized agents of not less than fif-

ty (50) percent of the area of land for which a

p nen of classification is requested provided,

however, that where any lot located in the

aforesaid area is owned in division, all co

owners must sign the petition for that lot to be

included in the fifty (50) percent area provision.

Each petition for a change in the classification

of property shall be accompanied by six copies

of a map, drawn to an approximate scale of one

inch equals fifty feet, showing the dimensions

of each ownership within the area of the pro-

posed and within five hundred feet

radius of ey oposed change. There shall also

be submitted a st showing the name and ad-

dress of each poy owner within the area

shown on the map. Additionally, the petitioner

shall furnish a copy of subdivision covenants, if

any, affecting the property under consideration

. for reclassification and he shall certify that said

covenants are current and in effect at the time

of filing.

. Each petition shall be accompanied by a

deposit of twenty-five dollars for each text

—} in the ordinance not involving acreage

and five dollars for each acre of land and por-

tion thereof (maximum $250 - minimum $25) for

which a of classification is pro or

recommended. Under no conditions said

sum or any part thereof be refunded for failure

of said change to be adopted by the City Coun-

cil. The petitioner shall also pay the direct cost

sare, eipttehos nk te ort of tomnsnstet

pare to wri testimony given

at the public Si the Zoniny

mission.

amendment to the ordinance, and said

has been finally acted upon by the City

or when said petition has received no eevee on

the part of the Cit ies bes ban ce

days, or when said petition has been o

advertised for public hearing but has md

quently been withdrawn either before or after

said hearing has been held, then the City Coun-

cil shall not consider a further petition re-

—_ . Un ae be = period of

ments for the same propert od o

two calendar years ‘hem ay within City

Council’s legal action on y+ a tition on or

from the expiration of the aforesaid inate day

iod in case action has not been taken by the

ai Council, or ine \~ date withdrawal of

— providing, however, that said peti-

tion been officially advertised. This provi-

sion shall not apply in cases where the City

Council wishes to consider a comprehensive

zoning revision of an area larger than twenty

acres.

SECTION 6 - AMENDATORY ACTION BY THE

CITY COUNCIL WITHIN NINETY. (90) DAYS

FROM RECEIPT OF FINAL REPORT: If the City

council decides to amend this ordinance it shall do so

within ninety (90) days from yt date upon which the

ome | Commission files the final report with said

-UONIsoddC

Office - Supreme Court, Us. |

oo FILED

IN THE OCT 24 198!

Supreme Court of the United Spares” a

Octoser Term, 1981

JAMES E. HERNANDEZ, APPELLANT

THE CITY OF LAFAYETTE, LOUISIANA AND

THE CITY COUNCIL OF LAFAYETTE,

LOUISIANA, APPELLEES.

ON APPEAL FROM THE THIRD CIRCUIT

COURT OF APPEAL

IN AND FOR THE STATE OF LOUISIANA

MOTION TO DISMISS OR AFFIRM

CHARLES L. SIEMON

WENDY U. LARSEN

Ross, Harpies, O’Keere, BABCOCK

& PARSONS

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Counsel for Appellees

Of Counsel

RICHARD F. BaBcock

October, 1981

Pandick Press Midwest, Inc., Chicago * 454-7600

TABLE OF CONTENTS

Ae Ge AT ee ED cccccccececssecseceszcevinisnssscveesesnsees

ADDITIONAL STATEMENT OF THE CASE...............

ARGUMENT

A. The Federal Questions Raised on Appeal Are

iinet icterestertntiicinamemadaaetialidaben

B. The City’s Conduct Did Not Deprive Appellant

of His Rights Under the Fifth and Fourteenth

I alisticcsisicnstiecscedtinnnceenennseaneuniabnenintets

C. The Preservation ‘of an Economically Viable

Use to Appellant Does Not Present a

Substantial Federal Question ....................:.000+

RIN cccccsccnscscecsseasevss Sosandetaditieabetionleiiebaghlieliceieetiaae

Agins v. City of Tiburon, 447 U.S. 255 (1980) .......

Hernandez v. City of Lafayette, 399 So. 2d 1179

(La. App., 1981), writ denied, _. So. 2d

aun (8. 1968) -

Penn Central Transp. Corp. v. New York City, 438

ee EE TEI) sdtnnsihedhidhcneeniensenenteinesniinmniaineniiisensiits

Robertson v. City of Salem, 191 F. Supp. 604 (D.

I TUITUIIT Ih el laticeetitictlisbtceetitesiatadeapentiablisininiisieainbiidaten

San Diego Gas & Electric v. City of San Diego,

ee |) ee

Schad v. Borough of Mt. Ephraim, _— U. S.

ee | ) een

Village of Euclid vy. Ambler Realty Corp., 272 U. S.

EEE Se a

Zucht v. King, 260 U.S. 174 (1922) ........cccccscceseeeees

Constitutional Provisions

Fifth Amendment to the United States Con-

stitution “[N Jor shall private property be taken

for public use, without just compensation.” .........

Fourteenth Amendment to the United States Con-

stitution “No State shall make or enforce any

law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law. . . .”’...........

IN THE

Supreme Court of the Anited States

OctTosBer TERM, 1981

JAMES E. HERNANDEZ, APPELLANT

THE CITY OF LAFAYETTE, LOUISIANA AND

THE CITY COUNCIL OF LAFAYETTE,

LOUISIANA, APPELLEES.

ON APPEAL FROM THE THIRD CIRCUIT

COURT OF APPEAL

IN AND FOR THE STATE OF LOUISIANA

MOTION TO DISMISS OR AFFIRM

Appellees, the City of Lafayette, Louisiana, and the City

Council of Lafayette, Louisiana, pursuant to Rule 16 of the

Rules of the Supreme Court of the United States, move this

Court to dismiss the appeal herein and/or affirm the judgment

of the Third Circuit Court of Appeal of the State of Louisiana

on the ground that the questions presented are so unsubstantial

as to not warrant further argument.

ADDITIONAL STATEMENT OF THE CASE

Contrary to Appellant’s hyperbolic version of ime case

which is presented at pages 5-14 of his Jurisdict‘Jaal Statement.

this cause involves nothing more than a challenge to the validity

of the City of Lafayette’s zoning ordinance as applied to

Appeilant’s property. Appellant himself framed the issues in

his Complaint and alleged that the City’s failure to rezone his

property (the practical effect of which was to leave intact a

residential classification that permits up to 85 dwelling units on

his property) was unconstitutional. The Third Circuit Court of

Appeal for the State of Louisiana, however, found that under

established principles of zoning jurisprudence the record con-

tained evidence that the existing zoning classification did bear a

substantial relationship to the public health, safety and welfare

and preserved to Appeilant an economicaily beneficial use of

his property. Appellant petitioned the Third Circuit Court of

Appeal for a rehearing en banc, which was denied on May 8,

1981. Appellant’s application for writ of certiorari or review

was denied by the Supreme Court of Louisiana on June 22,

1981. Hernandez v. City of Lafayette, 399 So. 2d 1179 (La.

App. 1981), writ denied, ____ So. 2d —___ (La. 1981).

Appellant’s property is a 16.7 acre parcel of land located in

the City of Lafayette which is zoned R-1-A and has been so

zoned for 17 years. Property to the north, east, south, and west

of the subject property is also zoned R-1-A. To the northwest,

across West Bayou Parkway from the narrow fifty-foot neck of

the property is a parcel of land zoned R-2 which has been

developed into townhouses. The only non-residentially zoned

land in the immediate vicinity of Appellant’s property is located

on the opposite side of South College Road, a six-lane major

arterial road and is more than 500 feet from the usuable portion

of Appellant’s property. See Appendix | in Hernandez v. City

of Lafayette, 399 So. 2d at 1186, which graphically portrays the

zoning in the area.

Appellant’s property has an irregular configuration and is

bounded on its eastern edge by a fifty-foot wide body of water

named the Coulee Mine which serves as a backdrop for a series

of spacious single-family residences on lots immediately across

the coulee from the subject property. The narrow fifty-foot

wide neck of the property which abuts South College Road is

unusable under any zoning classification and the property has

no direct access to South College Road because of a bridge at

the property line. The subject property is currently improved

with two single family residences and has been used for

residential purposes for many years.

A municipal sewer plant is located on the parcel of land to

the south of the subject property but is visible from only a small

portion of the subject property. The sewer plant was construct-

ed prior to most of the development in the neighborhood,

including the Appellant’s residence. The property is traversed

by a series of utility easements that would have to be moved no

matter how the property is developed.

According to the evidence in the record, under the R-1-A

zoning classification the property has a value of at least

$1,000,000, exclusive of improvenients. The only expert real

estate appraiser who testified as to land value testified that the

property, excluding the two homes currently on the property,

has a value of $1,180,000 or in excess of $75,000 an acre.

ARGUMENT

THE FEDERAL QUESTIONS RAISED

ON APPEAL ARE NOT SUBSTANTIAL

Appellant, of course, asserts that the federal questions

presented are substantial and urges plenary review by this

Court. Appellees respectfully disagree and pray this honorable

Court dismiss the appeal and affirm the judgment of the Third

Circuit Court of Appeal of the State of Louisiana. Appellees

submit that the questions presented are not substanval and do

not merit further review by this Court. Substantiality of a

federal question is a somewhat illusive concept that is not

amenable to general description; however, one pertinent indicia

of a federal question that is not substantial is that the question

of federal law involved is well-settled. See e.g., Zucht v. King,

260 U. S. 174 (1922). Appellees respectfully submit that the

jurisprudence of zoning is well-settled by the opinions of this

Court and that there is no substantial federal question present-

ed for review in this matter.

The constitutional law of police power regulation over the

use of land is well-established. In Village of Euclid v. Ambler

Realty Corp., 272 U.S. 359, 387-88 (1926) this Court set down

an enduring rule of law:

[Zoning regulations] must find their justification is some

aspect of the police power asserted for the public welfare.

al . 7 * . .

If the validity of the legislative classification be fairly

debatable, the legislative judgment must be allowed to

control.

See also, Penn Central Transp. Corp. v. New York City, 438

U. S. 114 (1978). In Agins v. City of Tiburon, 447 U. S. 255,

260 (1980) this Court rehearsed what are recognized as

accepted standards:

The application of a general zoning law to particular

property effects a taking if the ordinance does not substan-

tially advance legitimate state interests, see Nectow v. City

of Cambridge, 277, U. S. 183, 188 (1928) or denies an

owner economically viable use of his land, see Penn

Central Transp. Corp. v. New York City, 438, U. S. 104,

138, n. 36 (1978). ,

More recently in Schad v. Borough of Mt. Ephraim, ——

U.S. ——, 101 S. Ct. 2176, 2182 (1981) this Court confirmed

the established character of the constitutional principles of

zoning law:

Where property interests are adversely affected by zoning

the courts generally have emphasized the breadth of

municipal power to control land use and have sustained

the regulations if it is rationally related to legitimate state

concerns and does not deprive the owner of economically

viable use of his property.

In each of the cases cited above the principles of con-

situtional law controlling the exercise of the zoning power are

clear, unambiguous and consistent. There is some question

about the nature of the appropriate remedy when a regulation

is declared to be overly restrictive, see e.g. San Diego Gas &

Electric v. City of San Diego U.S. —., 101 S. Ce. 1287

(1981) (Brennan, J., dissenting) but that question in no way

undoes the established character of the standards of judicial

review in zoning cases.

These established principles of law are the very same legal

principles that were applied to facts of this case by the Third

Circuit Court of Appeal of the State of Louisiana. Appellees

respectfully submit that Appellant’s Jurisdictional Statement

does nothing more than challenge the factual determinations

made below, and that fact and evidence questions are not

“substantial federal questions” under the appellate jurisdiction

of this Court.

In his Complaint, Appellant alleged that the repeated

refusal of the City of Lafayette to rezone his property in

accordance with his wishes did not bear any substantial

relationship to the public health, safety and welfare, and in the

alternative, deprived him of all beneficial use of his property.

Applying the evidence in the record to well-settled zoning

jurisprudence, the Third Circuit Court of Appeal for the State

of Louisiana held that the City’s regulations, as applied to

Appellant’s property, were valid. The court did not, as

Appellant glibly suggests, “declare open season on land-

owners.” To the contrary, the court found that the record

contained sufficient evidence to support a determination by the

City that the R-1-A zoning classification, as applied to Appel-

lant’s property, served the public health, safety and welfare and

that the R-1-A classification preserved to Appellant a practical,

beneficial use of his property. No matter how unhappy

Appellant is with the court’s decision and no matter how bitter

his language, his Jurisdictional Statement simply does not raise

any substantial question of federal law.

The Third Circuit Court of Appeal found that the record

contains “substantial evidence” that the property should remain

zoned R-1-A, residential, rather than be rezoned under a

commercial classification. The court noted that the evidence

adduced at trial showed that “rezoning the property to com-

mercial would be incompatible with and have an adverse effect

on the surrounding areas.” In addition, the court pointed out

evidence in the record that development of the property for

non-residential uses would produce “unsafe traffic conditions.”

In further support of its decision, the court cited the zoning

history of the vicinity as demonstrating that “since 1963... the

City has never waivered in its treatment of the subject proper-

ty.” The court also observed that the City’s zoning actions have

“been uniform in confining commercial and business districts to

frontage on the City’s arterial road network.” 399 So. 2d at

1183-84. The City’s denial of the requested rezonings were

therefore consistent with the City’s land use policies.

THE CITY’S CONDUCT DID NOT DEPRIVE APPELLANT

OF HIS RIGHTS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS

Notwithstanding the validity of the R-1-A zoning classifi-

cation, Appellant argues that he is entitled to a judgment

rezoning his property, because the acts of the City of Lafayette

were designed to “save expropriation dollars by threatening

potential condemnees with blatant abuse of their constitutional

protections.” ( Jurisdictional Statement at page 15) The record

in this cause, however, is absolutely clear that:

1. No expropriation of any portion of appellant’s property

has taken place;

2. There are no current or future plans to expropriate any

portion of Appellant’s property; and

3. At all times pertinent, Appellant’s land, under the

existing R-1-A zoning classification, had a value of greater than

$1,000,000 (not including the two residences currently devel-

oped on the property).

The fact is that Appellant hoped to increase the value of

his property by getting his property rezoned, a hope that was

denied by the City in favor of the City’s perception of the public

health, safety and welfare of the citizens of the City of

Lafayette. The Court of Appeal of the State of Louisiana

sustained the City’s position in its opinion. The “record in this

case does reveal a valid, objective basis upon which the City of

Lafayette could reasonably conclude tha: retaining the R-1-A

zoning classification of the subject property serves the public

health, safety and welfare.” 399 So. 2d a: 1184.

Appellant’s protracted comparison of Robertson v. City of

Salem is, to quote Robertson itself, of no “solace.” 191 F. Supp.

604, 611 (D. Ore. 1961). In Robertson the City of Salem

rezoned the landowner’s property in order to facilitate its

acquisition of governmental buildings. The City defended its

action in “holding” the property for state acquisition through

“zoning” as serving a legitimate public purpose. In contrast,

the City of Lafayette refused to rezone Mr. Hernandez’s

property to the zoning classification of Ais choice. And more,

significantly, the City of Lafayette defended its zoning decision

not on the basis of saving expropriation dollars but on the basis

of proper planning considerations—neighborhood character-

istics, site characteristics, traffic and city-wide policies and

impacts, justifications the Third Circuit found to be reasonable

under estabiished jurisprudence.

Furthermore, the history of the City’s consideration of a

roadway improvement which would have gone through a

portion of the Appellant’s property if implemented is simply

irrelevant. Even under the allegations of the complaint, the

facts in this case do not rise to the stature of the pre-

condemnation proceedings considered and rejected by this

court in Agins v. City of Tiburon, 447 U. S. 255 (1980). In

Agins the City of Tiburon had actually commenced con-

demnation proceedings. In this case, formal proceedings were

never commenced, and Appellant himself testified at trial that

an alternative plan of street improvements was being imple-

mented by the City.

Even if the appellants’ ability to sell their property was

limited during the pendency of the condemnation proceed-

ing, the appellants were free to sell or develop their

property when the proceedings ended. Mere fluctuations

in value during the process of governmental decisionmak-

ing, absent extraordinary delay, are “incidents of own-

ership. They cannot be considered as a ‘taking’ in the

constitutional sense.”

Id. at 263 n. 9 (citation omitted ).

Finally, Appellant’s illusion of oppression because of the

City’s consideration of the roadway realignment evaporates

when it is noted that the only real estate appraiser who gave

value testimony in regard to Appellant’s property testified that

it was possible that condemnation of a right-of-way through the

Hernandez property might cost more if the property was zoned

R-1-A than if it were zoned B-1-O. This is so because of the

availability of severance damages under Louisiana law. If a

right-of-way through the property, if it should ever come into

existence, would destroy the usefulness of the parcel for R-1-A

as Appellant claims, then the value of the entire parcel would

be the measure of compensation, while only the right-of-way

itself would be acquired if the property were zoned B-1-O.

Cc.

THE PRESERVATION OF AN ECONOMICALLY VIABLE

USE TO APPELLANT DOES NOT PRESENT A SUB-

STANTIAL FEDERAL QUESTION

In the second part of his argument in support of the

proposition that the federal questions presented herein are

substantial, Appellant reargues the evidence in the record and

attempts to persuade this Court to reweigh the evidence.

Appellant’s argument, of course, ignores the fact that this

Court’s appellate jurisdiction does not extend-to a reweighing of

the evidence in review of factual determinations made below.

More importantly, Appellant's self-serving version of the record

is extremely misleading and can be described, at best, as

selective.'

‘One example of Appellant's inaccurate portrayal of the record

in his reference to the decision of the Fifth Circuit Court of Appeals.

( Jurisdictionai Statement page 8) The City moved for a judgment on

the pleadings in the federal court and the District Court, taking the

well-pleaded allegations of the complaint as true, granted judgment in

favor of the City. The Fifth Circuit recited the same allegations, taken

( Footnote continued on following page.)

Even were it appropriate for this Court to reweigh the

evidence, Appellant’s argument misses the mark on each of the

three theories he advances. Appellant’s arguments are that:

1. Appellant’s own zoning expert’s opinion that his

property had a value of $1,000,000 under the R-1-A classifica-

tion was an unreliable guess;

2. The only real estate expert who testified said property

could not be “used” under the R-1-A classification; and

3. The City’s expert real estate appraiser’s value opinion

was “inapplicable.”

Appellant’s so-called planning expert, who testified that he

was a licensed realtor and that land value was a perunent part

of forming an opinion as to proper zoning, opined that the

property had a value of $1,000,000 under the existing, R-1-A

zoning classification. He substantiated his opinion by testifying

that townhouses ( permitted on Appellant’s property in the R-1-

A district) directly across West Bayou Parkway from Appel-

lant’s property were selling for $145,000 each. No matter how

hard Appellant tries, he cannot escape the fact that the only

evidence in the record is that the Appellant’s property has a

value of at least $1,000,000 under the existing residential

classification. While Appellant may regret his zoning expert's

opinion and may not agree with the estimate, Appellant offered

no evidence whatsoever as to the value of his property and is

hardly in a position to now complain.

( Footnote continued from preceding page.)

as true for the purposes of the motion, as the “background” of the

case on which the issues of law were to be decided. No federal Court

has ever characterized the facts in this matter and it is difficult to

believe that Appellant's presentation of the Fifth Circuit's opinion as a

“characterization of Appellant's plight” is anything more than a

calculated attempt to mislead.

As for Mr. Cecil Trahan’s opinion that the property could

not be used under the R-1-A classification, Appellees respect-

fully point out a few of the reasons the appellate court may

have found Mr. Trahan’s opinion less than compelling. First,

Mr. Trahan admitted that he had a financial interest in the sale

of the property if it could be rezoned to B-1-O. Second, Mr.

Trahan’s opinion that townhomes could not be marketed on

Appellant’s property was, he said, just a “feeling,” a feeling

that is completely contradicted by his admission that town-

homes immediately across the street from Appellant’s property

were selling for $145,000. More importantly, Mr. Gene Cope, a

real estate appraiser qualified as an expert, testified that the

property had a value of $1,180,000 under the existing classifica-

tion. That appraisal included Mr. Cope’s professional opinion

as to the marketability of the property in the City of Lafayette.

Finally, Appellant would have this Court believe that the

opinion of Mr. Cope, the City’s real estate appraiser, had a

“gross defect in his analysis [because] ... [t]he property

utilized in Mr. Cope’s method of analysis were clearly shown to

be totally inappropriate in determining land values on the

subject property.” (Jurisdictional Statement page 25) It is

unnecessary to dwell on the fact that Mr. Cope used two

different approaches to value (of which only one was chal-

lenged on cross-examination with regard to comparable sales

data) because this Court does not sit to reweigh the evidence in

the record.

CONCLUSION

WHEREFORE, Appellees respectfully submit that the ques-

tion upon which this cause depends is so unsubstantial as not to

need further argument, and Appellees respectfully move the

Court to dismiss this appeal, or, in the alternative, to affirm the

judgment entered in the cause by the Third Circuit Court of

Appeal of the Siate of Louisiana.

Respectfully Submitted,

CHARLES L. SIEMON

WENDY U. LARSEN

Ross, Harpies, O’KEEFE, BABCOCK

& PARSONS

One IBM Plaza, Suite 3100

Chicago, Illinois 60611

(312) 467-9300

Counsel for Appellees

Of Counsel

RICHARD F. BABCOCK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.