Agenda - Planning Commission - 01/07/2016

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November 25, 2015 1 Volume 9 1 Issue 22 Zoning Bulletin The district court found that the Developers could not recover damages because Louisiana statutory law—La. R.S. 9:2798.1—shielded the City from liability. That statute provides that "liability shall not be imposed on public entities," including local governments or their officers or employees "based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts were within the course and scope of their lawful powers and duties." The court found that despite the use by right zoning for the property, the City had discretion to disapprove the site plan, and that since the City merely exercised its discretion under the applicable rules, it was immune from the Developers' tort action. The Developers appealed. They argued that the City had no discretion to disapprove a site plan in such a use by right case. In the alternative, they argued that even if the City did have discretion, it exercised that discretion without regard for any legitimate objective. As such, the Developers urged that the City was not immune from liability. DECISION: Judgment of district court affirmed. The Court of Appeal of Louisiana, Second Circuit, held that the City's denial of the Developers' plan was a discretionary act that was genuinely based in the City's attempt to ensure that use of property comported with the public interest, and that therefore the City was immune from suit under La. R.S. 9:2798.1. In so holding, the court rejected the Developers' contention that the City had "no" discretion to deny their site plans for a use by right. The court explained that a municipality retains the discretion to deny a site or subdivi- sion plan submitted in accordance with use by right zoning, but that denial is subject to strict scrutiny and the zoning ordinances and actions will be construed in favor of the use proposed by the owner. Here, although the City's actions were ultimately overturned by the district court, the appellate court affirmed that the City's actions were nev- ertheless "a discretionary act genuinely based in the City's attempt to ensure that the use of the property comported with the public interest in a safe and well -ordered community." So, while "some of the City's proposed justifications for denying the plans were improper," "the City had some. discretion in the choice to approve the site plans" related to its public safety concerns. The fact that the district court found the City's public safety concerns were inadequate to deny the plan did not, said the appellate court, equate to a finding that the City's action based on those concerns was "not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists." The appellate court concluded noting that "recovery of tort damages against a public entity, even for a wrongly denied use by right case, requires proof of wrongdoing not found in this case." Accordingly, the court found that the City was entitled to statutory immunity from the Developers' suit. See also: D'Argent Properties, LLC v. City of Shreveport, 15 So. 3d 334 (La. Ct. App. 2d Cir. 2009), writ denied, 21 So. 3d 308 (La. 2009). 6 © 2015 Thomson Reuters