Agenda - Planning Commission - 09/07/1999

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goB. August 10, 1999 -- Page 5 Conditional Use -- Did town arbitrarily deny permit for family cemetery? LOUISIANA (7/2/99) -- Jenkins owned a 145-acre tract of wooded property in St. Tammany Parish. He applied for a conditional use permit to build a one- acre family cemetery on his property. The parish zoning commission held a hearing, at which two neighbors op- posed Jenkins' request. The commission suggested Jenkins consider relocat- ing the cemetery to another parcel of property he owned nearby, but Jenkins refused. He said a surveyor had recommended the location because its high elevation would allow for the best drainage. The commission denied Jenkins' request, finding there were-too many cem- eteries in the surrounding area. It also said it relied in part on Jenkins' unwill- ingness to relocate the cemetery because the proposed site would cause unsafe traffic conditions on a nearby highway. The commission told Jenkins it would issue the permit if he would agree to build the cemetery on his other lot. Jenkins appealed to the parish board, which agreed with the commission. Jenkins appealed to court, seeking a court order requiring the parish to issue him a permit. He claimed the parish zoning ordinance was unconstitutional because it didn't have objective guidelines for considering conditional use appli- cations. He also claimed the parish's decision was unreasonable and arbitrary. The court affirmed the parish's decision and denied Jenkins' request. It found the zoning ordinance provided adequate criteria to govern the consider- ation of conditional use permit requests and Jenkins didn't prove the parish's decision was arbitrary or unreasonable. Jenkins appealed again. The appeals court found the zoning ordinance was unconstitutional because it didn't provide uniform standards for reviewing con- ditional use permit requests.:It ordered the parish to issue Jenkins a permit. The parish appealed. DECISION: Affirmed in part. Jenkins was entitled to the conditional use permit, but the appeals court should not have found the parish zoning ordinance was unconstitutional. There was no reason to address the constitutionality of the zoning ord~'- nance because the parish's decision was unreasonable. The commission's willingness to issue Jenkins a permit for the cemetery if he would move the cemetery to his other parcel contradicted its statement that there were too many cemeteri.9.s in the area. If the commission were truly con- corned with the number of cemeteries in the area, it wouldn't have given Jenkins the option to build the cemetery somewhere else. The commission's claim that Jenkins' proposed location was unacceptable because it would create unsafe traffic conditions on a nearby highway Iacked credibility because a private family cemetery wouldn't generate enough activity to disrupt the flow of traf- fic on the highway. Jenkins v. St. Tammany Parish Police Jury, Sul2reme Court of Louisiana, No. 98-CA-2627 (1999). see also: Summerell ~; Phillips, 282 So. 2d 450 (1973). /55