The Salinger Group v. City-Parish of East Baton Rouge

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CA 0295

THE SALINGER GROUP, INC.
VG ILA' d vrh`
VERSUS

CITY -PARISH OF EAST BATON ROUGE

Judgment Rendered. JUL 2 4 2020

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C673111

The Honorable Timothy E. Kelley, Judge Presiding

Anderson O. " Andy" Dotson, III Counsel for Defendant/Appellant
Parish Attorney City of Baton Rouge and Parish of
Gwendolyn K. Brown East Baton Rouge

Assistant Parish Attorney
Baton Rouge, Louisiana

Gregory E. Bodin Counsel for Plaintiff/Appellee
Christopher M. Vitenas Brennan T. Baldridge d/ b/ a
Baton Rouge, Louisiana The Salinger Group

BEFORE: WHIPPLE, C. J., McDONALD, THERIOT, CHUTZ,
AND BURRIS, JJ.

THERIOT, J.

In this mandamus action, the defendant appeals a trial court judgment

making its alternative writ of mandamus peremptory in part and ordering the

defendant to issue a permit to plaintiff. For the reasons set forth herein, we reverse

the judgment of the trial court and recall the writ of mandamus.

FACTS AND PROCEDURAL HISTORY

On September 27, 2017, the Metropolitan Council of the City of Baton

Rouge -Parish of East Baton Rouge (" City -Parish") adopted Ordinance # 16657, 1

amending the Code of Ordinances of the City of Baton Rouge and the Parish of

East Baton Rouge (" Code of Ordinances") to add Title 2, Chapter 9, entitled Small

Wireless Facilities, " to establish policies and procedures for the placement of small

wireless facilities in rights- of-way within the City -Parish' s jurisdiction, which will

provide public benefit consistent with the preservation of the integrity, safe usage,

and visual qualities of the City -Parish rights- of-way and the City -Parish as a

whole .,,2 The City -Parish' s expressed intent in enacting Chapter 9 was to establish

uniform standards to address issues presented by small wireless facilities, such as:

1) preventing interference with the use of streets, sidewalks, alleys, parkways, and

other public ways and places; ( 2) preventing the creation of visual and physical

obstructions and other conditions that are hazardous to vehicular and pedestrian

traffic; ( 3) preventing interference with the facilities and operations of facilities

lawfully located in rights- of-way or on public property, as well as public safety

vehicles; ( 4) protecting against environmental damage, including damage to trees;

5) preserving the character of the neighborhoods in which facilities are installed;

1 Ordinance # 16657 became effective on December 27, 2017, three months following the date of its adoption.
Ordinance # 16657 was later replaced by Ordinance # 16873, effective July 25, 2018. References herein to the Code
of Ordinances of the City of Baton Rouge and the Parish of East Baton Rouge are to the provisions in effect at the
time of the events involved in this case.
z Baton Rouge, LA, Code of Ordinances § 2: 380( A).

2

and ( 6) facilitating rapid deployment of small cell facilities to provide the benefits

of advanced wireless services.'

Under the provisions of Chapter 9, a person wishing to place a small

wireless facility in a right- of-way must file a small wireless facility application and

obtain a permit before doing so.' The permit application must be made by the

wireless provider or its duly authorized representative on a form ( either paper or

electronic) provided by the City -Parish' and must be accompanied by a fee for the

actual, direct, and reasonable costs incurred by the City -Parish related to

processing the application.' Chapter 9 sets forth certain information required to be

included in a permit application, including the applicant' s name and contact

information, a general description of the proposed work, and the purpose and intent

of the small wireless facility.' The scope and detail of the general description to be

included in the application " shall be appropriate to the nature and character of the

work to be performed, with special emphasis on those matters likely to be affected

or impacted by the work proposed."' Permit applications must also comply with

all applicable codes. 9

Chapter 9 also sets forth the procedure for the City -Parish' s review and

processing of permit applications. Under these provisions, when a permit

application is submitted, the City -Parish must review the application in light of its
10
conformity with the applicable regulations of the Chapter. Within ten days of

receipt of the application, the City -Parish must determine and notify the applicant

3 Baton Rouge, LA, Code of Ordinances § 2: 380( B).
4 Baton Rouge, LA, Code of Ordinances § 2: 382( B).
5 Baton Rouge, LA, Code of Ordinances § 2: 382( C).
The amount of the application fee is not set forth in Chapter 9; however, § 2: 382( G)( 1) states that the fee shall not
exceed $ 500 each for up to five small wireless facilities and $ 250 for each additional small wireless facility, and
1, 000 per application for each wireless support structure or attachment to a City -Parish -owned pole.
7 Baton Rouge, LA Code of Ordinances § 2: 382( D).
8 Baton Rouge, LA, Code of Ordinances § 2: 382( D)( 3).
9 Baton Rouge, LA, Code of Ordinances § 2: 382( D)( 4). " Applicable Codes" means uniform building, fire,
electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments
to those codes enacted solely to address imminent threats of destruction of property or injury to persons to the extent
not inconsistent with the terms of Chapter 9. Baton Rouge, LA, Code of Ordinances § 2: 381( B).

10 Baton Rouge, LA, Code of Ordinances § 2: 383( A)( 1).

3

whether the application is complete, and if the application is incomplete, the City -

Parish must specifically identify the missing information." The City -Parish must

make its final decision to approve or deny the application within sixty days and

advise the applicant in writing of its final decision. If the City -Parish' s final

decision is a denial, the written notification must document the basis for the denial,

12
including the specific code provisions upon which the denial is based. If the

City -Parish fails to act on a permit application within the sixty-day review period,

the applicant may " provide notice that the time period for acting has lapsed and the
3
application is then deemed approved."'

On February 20, 2018, almost two months after the effective date of

Ordinance # 16657, Brennan Taylor Baldridge, President of The Salinger Group,

sent an email to Ebony Brown in the City of Baton Rouge' s Code Enforcement

Office in an attempt to file a consolidated permit application14 for " 98 small cell

facilities" on behalf of The Salinger Group. Baldridge' s email stated, " We were

told no application form existed, so we prepared one using the application

requirements defined in [§ 2: 382( D)]." With regard to the required application fee,

Baldridge' s email stated " we are willing to pay for actual, direct, and reasonable

costs incurred by the City -Parish related to processing [ the] application subject to

the limitation in [§ 2: 382];" however, no application fee was ever tendered by

Baldridge. Attached to the email was the permit application created by Baldridge,

which outlined the application requirements from Chapter 9 and provided the

requested information in response.

11 Baton Rouge, LA, Code of Ordinances § 2: 383( A)( 1)( a).
12 Baton Rouge, LA, Code of Ordinances § 2: 383( A)( 1)( b) and ( c).
13 Baton Rouge, LA, Code of Ordinances § 2: 383( A)( 2).
14 §
2: 383( A)( 3) provides that an applicant who seeks to construct a network of small wireless facilities may elect to
file a consolidated application for a single permit for multiple small wireless facilities.

L!

David Cobb, the City -Parish' s Building Official, responded by email to

Baldridge on February 28, 2018, informing him that the application " will not be

able to be processed at this time." Cobb' s email went on to state:

There are multi -departmental issues that are being addressed so the
application can be processed. Also please be advised that the
City/Parish does not own any telephone/ electric poles in the right of
way. Written permission would need to be obtained from whatever
utility companies [ sic] pole( s) would be utilized. Additionally, an
address for each location/pole would need to be obtained to use the
permitting software. These are not all inclusive of the [ sic] what may
be required for a permit to be issued but an indication of what is being
done to assist and fulfill the request.

Baldridge replied to Cobb' s email on March 1, 2018, noting that he was

seeking to use only " traffic poles" owned by the City -Parish, not telephone or

electric poles. In response to Cobb' s statement that an " address" for each location

or pole would be necessary, Baldridge replied that the ordinance did not require an

applicant to provide an " address" for each location or pole and that the information

he had submitted with the application was sufficient under Chapter 9. 15 Finally,

with regard to Cobb' s statement that the list of problems with the application was

not " all inclusive," Baldridge pointed out that the ten- day period for the City -

Parish to identify any additional missing information in the application under §

2: 383( A)( 1)( a) had expired and that " the ordinance does not allow for delays in

processing submitted applications ... for any reason."

Thereafter, on April 23, 2018, Baldridge emailed Brown, noting that no

response to the February 20, 2018 permit application had been received from the

City -Parish within the sixty- day application review period set forth in §

2: 383( A)( 1)( b), "[ t] herefore, we are providing this notice that the time period for

acting on the application has lapsed and the application is now deemed approved

15 Baldridge' s email stated:

T] he ordinance only requires the applicant to provide: " the latitude and longitude coordinates of
each small cell facility." We included as Exhibit I to the application a chart which provided the
geolocation ( latitude and longitude) for each pole. This information was obtained using the Ci ' s

open data portal which enabled us to include the City' s traffic signal inventory number for each
location. Additionally, we provided a listing for each location' s primary street and cross street.

5

per Sec. 2: 383( a)( 2), effective as of the date of this letter." Baldrige requested that

the City -Parish formally issue the consolidated permit.

On May 22, 2018, Ingolf Partenheimer, the City -Parish' s Chief Traffic

Engineer, contacted Baldridge by email, requesting a meeting so that he could get

more information from Baldridge in an attempt to help move the application

forward. Baldridge declined to meet with Partenheimer, stating that his application

had been " automatically approved" under the ordinance and that he would not

work with the City -Parish until they issued the permit.

On July 25, 2018, the City -Parish adopted Ordinance # 16873, which was

effective immediately and amended Chapter 9 in a number of ways. Most relevant

to this case, it extended the time periods for the City -Parish to review and act on a

permit application and removed the provision that allowed for an application to be

deemed approved" where the City -Parish failed to act on the application within

the designated review period. Ordinance # 16873 also expressly repealed any

ordinances or parts of ordinances in conflict with its provisions.

The City -Parish did not issue a permit as requested by Baldridge, and on

August 24, 2018, The Salinger Group, Inc. filed a petition for writ of mandamus,

requesting that the trial court compel the City -Parish to issue the permit. The City -

Parish filed a motion to dismiss The Salinger Group' s petition for writ of

mandamus, noting that " The Salinger Group, Inc." did not begin to exist as an

entity until its incorporation on August 20, 2018, and therefore it could not have

been an applicant under the provisions of Chapter 9. 16 The trial court dismissed

The Salinger Group' s petition for a writ of mandamus on the City -Parish' s motion,

and thereafter an amended petition for writ of mandamus was filed by " Brennan T.

Baldridge, doing business as The Salinger Group." The trial court issued an

16 The City -Parish' s motion to dismiss also raised other grounds for dismissal, which are not discussed here.

X

alternative writ of mandamus and rule to show cause pursuant to La. C. C. P. art.

3865, and the matter was set for hearing.

The City -Parish filed a motion to dismiss the amended petition on the

following grounds: the plaintiff in the amended petition ( Brennan T. Baldridge,

doing business as The Salinger Group) lacks standing because he is separate and

distinct from the corporate entity that submitted the February 20, 2018

application;" neither Baldridge nor The Salinger Group is an " applicant" as

defined in Chapter 9, because an applicant must be a wireless provider;" the

February 20, 2018 request for a permit was not an application which would trigger

the City -Parish' s duty to respond because it was not filed on a form provided by

the City -Parish; the City -Parish satisfied any obligation it may have had to give

notice of denial through its February 28, 2018 email informing Baldridge that his

submission was being rejected; some of the locations identified by Baldridge' s

permit request were not owned by the City -Parish; the City -Parish had the

discretion to reject Baldridge' s request due to safety concerns, since the locations

identified in the purported application were actually in the middle of intersections;

Baldridge' s submission did not include the application fee required by Chapter 9;

and the provisions of the Code of Ordinances on which Baldridge' s request for

mandamus relief was based were repealed by Ordinance # 16873 prior to the filing

of the petition for mandamus.

A hearing was held on the amended petition for mandamus and the motion

to dismiss on November 8, 2019. After hearing arguments on the motion, the trial

court denied the motion to dismiss the petition for mandamus, noting that

17 An " applicant' is defined as " any person who submits an application and is a wireless provider." Baton Rouge,
LA, Code of Ordinances § 2: 381( C). " Wireless provider" means " a wireless infrastructure provider or a wireless
services provider." Baton Rouge, LA, Code of Ordinances § 2: 381( P). A " wireless infrastructure provider" is a
person, including a person authorized to provide telecommunications service in the state, who builds or installs
wireless communication transmission equipment, wireless facilities, or wireless support structures, but who is not a
wireless services provider. Baton Rouge, LA, Code of Ordinances § 2: 381( 0). A " wireless services provider" is a
person who provides wireless services, i. e., any services, whether at a fixed location or mobile, provided using
wireless facilities. Baton Rouge, LA, Code of Ordinances § 2: 381( Q) and ( R).

7

Baldridge was indeed an applicant, that he had submitted an application, and that

he did not have another legal remedy available to obtain a permit. The trial court

explained that although Baldridge could file another permit application, his

February 20, 2018 application was already deemed approved under Chapter 9, and

there was no assurance that a new application would be approved. After denying

the motion to dismiss, the trial court heard testimony and received evidence on the

issue of mandamus.

Baldridge testified that he initially contacted the City -Parish following the

adoption of Chapter 9 to request an application form. Because the City -Parish did

not yet have an application form available, Baldridge claimed he was specifically

directed " that the form could be produced [ by Baldridge] if all of the information

was contained that the ordinance required, and that that information should be sent

to Ebony Brown." Baldridge acknowledged that an application fee was required

by the ordinance, but explained that since the ordinance required the payment of

actual, reasonable costs" up to a maximum amount set forth in Chapter 9, he

believed that the City -Parish would instruct him at a later date of the exact amount

due. Although § 2: 382( G)( 1) also provides for a set fee of $ 1, 000. 00 per

application, Baldridge testified that he did not pay this amount because he was

unsure whether he owed a single $ 1, 000. 00 application fee for the consolidated

application, or ninety- eight $ 1, 000. 00 application fees ( one for each location

requested). Baldridge testified that he asked several City -Parish employees what

fees needed to be paid, but he did not receive an answer and never received a bill

from the City -Parish.

Although Baldrige received Cobb' s February 28, 2018 email response to his

application, identifying several deficiencies to be addressed, he did not consider

this to be a notice of denial, and furthermore, he believed that his response to this

email was sufficient to address the deficiencies noted. Although he did not supply

8

the " address for each location/pole" as requested in Cobb' s email, Baldridge

explained that he did not understand until much later that Cobb meant that he

needed the latitude and longitude for each specific location or pole, as opposed to

the latitude and longitude for the center of the intersection where the pole or poles

are located. Baldridge testified that if Cobb had given him more specific

instructions, he would have supplied the correct information.

Baldridge acknowledged that Partenheimer contacted him to request a

meeting so that he could get more information from Baldridge in order to try to

move the permitting process along, but that he declined because the sixty- day

review period had expired and his application was already deemed approved.

Baldridge told Partenheimer that he would not " work with the City" until the

permit was issued.

Baldridge filed a second permit application on June 6, 2018, for different

locations than those requested in the February 20, 2018 application. He testified

that in response to this second application, the City -Parish sent him very detailed

information and ordinance -specific citations of what exactly was wrong with his

application.
In the course of working with the City -Parish on the second

application, Baldridge learned what information the City -Parish had been

requesting on his first application ( the latitude and longitude for each individual

pole) that he did not understand at the time of his original application.

Cobb testified that Baldridge' s email application was the first one received

by his office following the adoption of Chapter 9, and it was submitted before the

official application was even created by the City -Parish. By the time of the

hearing, almost two years after the effective date of Ordinance # 16657, the City -

Parish had only received a total of four applications, including Baldridge' s two

applications. Cobb testified that his office' s procedures for processing the

applications were " getting better refined" and its responses more thorough as they

E

gained experience with the applications. Cobb' s role in processing a small

wireless facility permit application is to receive the application and confirm that

the application is complete ( including accurate locations) and that fees are paid

before forwarding the application to the traffic engineering department for further

review. Cobb does not have the authority to issue permits without a technical

review from the traffic engineering department.

Cobb testified that he did not take any further action on Baldridge' s

application after his initial February 28, 2018 email because he did not receive a

response from Baldridge with all of the necessary information to complete the

application ( e. g., the latitude and longitude for each of the ninety- eight individual

locations). Although he acknowledged that he did not send a final denial letter

within sixty days, Cobb explained that based on his understanding of the newly -

adopted ordinance, he satisfied his responsibilities under Chapter 9 when he

notified Baldridge that his application was incomplete, and he did not believe that

he had any further responsibilities under Chapter 9 unless and until Baldridge sent

additional information to address those identified deficiencies.

Partenheimer testified that his department is responsible for reviewing the

traffic side" of the permit applications. The applications do not come to his office

for review until all of the location information is accurate and complete, because

he cannot review the request without knowing exactly which pole at an intersection

the request pertains to. After conducting a technical review of the completed

application forwarded to his department by Cobb' s office, Partenheimer provides

comments from a traffic engineering perspective of issues to be addressed and

resolved by the applicant, such as " distance from roadway, incorrect right- of-way

widths, things of that nature."

Partenheimer explained that the location information in Baldridge' s

application was insufficient for his office to conduct its technical review because it

10

only allowed him to identify the intersections, but not the particular poles.

Partenheimer explained that the identifying information used by Baldridge in his

application came from a " traffic signal inventory" available to the public online,

which was developed for an entirely different purpose and did not list all traffic

poles located at the intersections. Of the intersections included in Baldridge' s

application, only three contained any city -owned poles; and although Baldridge

requested ninety- eight locations for small cell facilities in his application, there

were only eleven city -owned traffic poles in all of the intersections listed in

Baldridge' s application. Partenheimer further testified that although his

department maintains traffic signals on state- owned poles pursuant to an agreement

between the City -Parish and the state, based on his experience, the City -Parish

does not have authority to issue permits to third parties to install equipment on

state- owned property without the state' s permission.

Partenheimer anticipated a number of problems with issuing a permit based

on Baldridge' s application, and based on his review of the information submitted

with the application, he was concerned that Baldridge might not have a proper

understanding of the technical aspects of installing equipment on poles. According

to Partenheimer, Baldridge' s application did not give dimensions, weights, or even

identify some of the equipment. For instance, the application seemed to evidence a

plan to mount the equipment on the poles using an attachment device that was

actually meant for a roof. According to Partenheimer' s testimony, the application

did] not really have mounting information, thicknesses, what is going to be used,

how it is going to be done, how it is going to be laid out, where the power is

coming from, is there solar panels or not solar panels, because they are mentioned.

There is a lot of information that is just not there. It really appears that two cut

sheets got thrown together and that is it. There is no site plan or anything." One

big concern" with Baldridge' s application was that installing the devices as

11

requested could " pull the pole over, or make it fly" or " turn" the pole.

Partenheimer testified that the problems he identified pose a risk to public safety,

but when he contacted Baldridge on May 22, 2018 to discuss resolution of those

public safety concerns, Baldridge declined to discuss it with him because the sixty-

day review period had expired.

Michael Todd Donmyer, District Administrator for the State Department of

Transportation and Development, 18 confirmed that the latitude and longitude

coordinates listed on Baldridge' s application did not refer to individual poles, but

rather the center of individual intersections where one or more traffic signal poles

are located. Furthermore, Donmyer attested that all but three of the traffic signal

ID numbers identified by Baldridge in his application refer to intersections with

traffic signal poles either owned by the state or located within the state' s right-of-

way, and the City -Parish lacks the authority to issue permits for the installation of

third -party equipment on such poles.

At the conclusion of the hearing, the trial court ordered that the alternative

writ of mandamus be made peremptory as to the eleven locations identified in the

judgment, which the trial court concluded were not state- owned poles or poles

within the state right-of-way. The trial court ordered the City -Parish to issue a

permit to Brennan Baldridge, doing business as The Salinger Group, for those

eleven poles. The City -Parish appealed, arguing that the trial court erred in

denying its motion to dismiss and granting the writ of mandamus, ordering it to

issue a permit.

DISCUSSION

A writ of mandamus may be directed to a public officer to compel the

performance of a ministerial duty clearly required by law. La. C. C. P. art. 3863;

Bonvillain v. Department of Insurance, 2004- 0332, p. 3 ( La.App. 1 Cir. 2/ 16/ 05),

18
By stipulation of the parties, Donmyer's affidavit was admitted into evidence at the hearing.

12

906 So. 2d 596, 598. The writ of mandamus is an extraordinary remedy and may

only be issued in cases where the law provides no relief by ordinary means or

where the delay involved in obtaining ordinary relief may cause injustice. La.

C. C. P. art. 3862; Gulfsouth Credit, Inc. v. Wiley, 2019- 0526, p. 1 ( La.App. 1 Cir.

1/ 9/ 20),--- So. 3d---, ---. In a mandamus proceeding against a public officer

involving the performance of an official duty, nothing can be inquired into but the

question of duty on the face of the statute and the ministerial character of the duty

he is charged to perform. Bonvillain, 2004- 0332 at p. 3, 906 So. 2d at 598.

A ministerial duty is a duty in which no element of discretion is left to the

public officer.
It is a simple, definite duty, arising under conditions admitted or

proved to exist, and imposed by law. Hoag v. State, 2004- 0857, p. 7 ( La. 12/ 1/ 04),

889 So. 2d 1019, 1024. Mandamus will not lie in matters in which discretion and

evaluations of evidence must be exercised. Allen v. St. Tammany Parish Police

Jury, 1996- 0938, p. 4 ( La.App. 1 Cir. 2/ 14/ 97), 690 So. 2d 150, 153, writ denied,

1997- 0599 ( La. 4/ 18/ 97), 692 So. 2d 455. Mandamus is not available to command

the performance of an act that contains any element of discretion, however slight.

Bonvillain, 2004- 0332 at pp. 3- 4, 906 So. 2d at 599.

Further, mandamus is to be used only when there is a clear and specific legal

right to be enforced or a duty which ought to be performed. It never issues in

doubtful cases. Wiginton v. Tangipahoa Parish Council, 2000- 1319, P. 4 ( La.App.

1 Cir. 6/ 29/ 01), 790 So. 2d 160, 163, writ denied, 2001- 2541 ( La. 12/ 7/ 01) 803

So. 2d 971. Although the granting of a writ of mandamus is considered improper

when the act sought to be commanded contains any element of discretion, it has,

nevertheless, been allowed in cases to correct an arbitrary and capricious abuse of

discretion by public boards or officials. City of Baton Rouge v. Douglas, 2016-

0655, p. 7 ( La.App. 1 Cir. 4/ 12/ 17), 218 So. 3d 158, 163; see also State ex rel.

Torrance v. City ofShreveport, 231 La. 840, 846; 93 So. 2d 187, 189 ( 1957) ( where

13

the Louisiana Supreme Court held that mandamus was appropriate in a case

involving the arbitrary refusal to grant a license). Generally, the action of a

governmental body is arbitrary, capricious, and unreasonable if it bears no relation

to the health, safety, or general welfare of the public. In addition, the violation of a

specific city ordinance, rule, or regulation that prohibits a particular action by a

governmental body can constitute an abuse of discretion. City of Baton Rouge,

2016- 0655 at p. 7, 218 So. 3d at 163, citing Fire Protection District Six v. City of

Baton Rouge Department of Public Works, 2003- 1205, p. 3 ( La.App. 1 Cir.

12/ 31/ 03), 868 So. 2d 770, 772- 73, writ denied, 2004- 0299 ( La. 4/ 8/ 04), 870 So. 2d

270.

Generally, an appellate court reviews a trial court' s judgment on a writ of

mandamus under an abuse of discretion standard. City ofBaton Rouge, 2016- 0655

at p. 7, 218 So. 3d at 163- 64. The trial court' s findings of fact in a mandamus

proceeding are subject to manifest error review. Turner v. East Baton Rouge

Parish School Board, 2017- 1769, p. 6 ( La.App. 1 Cir. 6/ 4/ 18), 252 So. 3d 990, 993,

writ denied, 2018- 1127 ( La. 10/ 15/ 18), 253 So. 3d 1299. However, questions of

law, such as the proper interpretation of a statute, are reviewed by appellate courts

under the de novo standard of review, and the appellate court is not required to

give deference to the lower court in interpreting a statute. Carver v. Louisiana

Department ofPublic Safety, 2017- 1340, p. 4 ( La. 1/ 30/ 18), 239 So. 3d 226, 230.

As noted above, mandamus is not an available remedy to compel

performance of a duty in which the public officer must exercise discretion or

evaluate evidence. It is clear from a review of the provisions of Chapter 9 that the

public officers must do both. The City -Parish' s review of a permit application is to

determine its conformity with the applicable regulations, which includes

compliance with uniform building, fire, electrical, plumbing, or mechanical codes,

or local amendments to those codes enacted solely to address imminent threats of

14

19
destruction of property or injury to persons. Cobb and Partenheimer both

testified that Baldridge' s application did not contain sufficient information for the

City -Parish to make this determination.

In addition, mandamus is only appropriate in situations where there is a clear

and specific legal right to be enforced or a duty that ought to be performed; it never

issues in doubtful cases. Baldridge' s entitlement to a permit under Chapter 9 was

not entirely clear. Although the City -Parish did not send a separate notice of denial

within sixty days of Baldridge' s application, Cobb' s email notified Baldridge that

his application was incomplete and identified certain information needed for

review of the application, which Baldridge did not supply in response. While

Cobb' s email arguably could have been clearer with regard to the information

needed, the email clearly expressed that the application was incomplete and could

not be acted upon in its current state.

Furthermore, although mandamus has been allowed to compel a public

official to perform a duty involving an element of discretion where there had been

an arbitrary and capricious abuse of that discretion by a public official, this

exception is only applicable where the public official' s exercise of discretion bears

no relation to the health, safety, or general welfare of the public. That is not the

case here. Partenheimer' s testimony made clear that accurate and complete

location information was critical to his ability to perform the technical review of an

application, and the inaccurate and incomplete location information in Baldridge' s

application prevented Partenheimer from conducting his review and identifying

public safety concerns. Cobb requested this information from Baldridge, but

Baldridge declined to address the deficiency, instead arguing that the information

he sent should be sufficient. Because Baldridge' s failure to supply complete and

accurate location information prevented the City -Parish from thoroughly reviewing

19 See Baton Rouge, LA, Code of Ordinances § 2: 383( A)( 1) & ( D)( 4).

15

the application for any threats to public safety, the City -Parish' s denial of the

permit does not constitute an arbitrary and capricious abuse of discretion.

For these reasons, we conclude that it was error for the trial court to issue a

writ of mandamus ordering the City -Parish to issue a permit to Baldridge. As

such, we reverse the trial court judgment and recall the writ of mandamus.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court is reversed

and the writ of mandamus is recalled. Costs of this appeal are assessed to plaintiff -

appellee, Brennan T. Baldridge, doing business as The Salinger Group.

REVERSED; WRIT OF MANDAMUS RECALLED.

16

THE SALINGER GROUP, INC. FIRST CIRCUIT

COURT OF APPEAL
VERSUS

STATE OF LOUISIANA

CITY -PARISH OF
EAST BATON ROUGE NO. 2019 CA 0295

CHUTZ, J., dissenting.

I disagree with the majority' s reversal of the trial court' s order that

defendant -appellant, The City of Baton Rouge -Parish of East Baton Rouge ( City -

Parish) issue a permit to plaintiff -appellee, Brennan Taylor Baldridge, President of

The Salinger Group (Baldridge), and the recall of the writ of mandamus. Under my

reading of Ordinance # 16657, the City -Parish simply failed to comply with the

provisions setting forth the framework for obtaining permits for small wireless

facilities in rights of way within the Parish.

The responsive email of City -Parish Building Official, David Cobb, on

February 28, 2018 to Baldridge' s February 20, 2018 emailed application cured any

possible deficiencies as a result of the requirements of Sec. 2: 382( C) that an

application be on " a form, paper or electronic, provided by the City -Parish" and

Sec. 2: 382( G) that an application be accompanied by a fee. More importantly,

although Cobb' s email may have, as the majority holds, " notified Baldridge that his

application was incomplete and identified certain information needed for review of

the application, which Baldridge did not supply in response," it falls short of the

requirements of Sec. 2: 383( A)( 1)( c) (" The City -Parish shall ... [ a] dvise the

applicant in writing of its final decision, and in the final decision document the

basis for a denial, including specific code provisions on which the denial was

based, and send the documentation to the applicant on or before the day the City -

Parish denies the application."). Finally, under Sec. 2: 383( A)( 1)( b), it appears that

t]he City -Parish shall ... [ m] ake its final decision to approve or deny the

application within sixty ( 60) days" and, under Sec. 2: 383( A)(2), regardless of

whether the application was complete, "[ i] f the City -Parish fails to act on an

application within the sixty ( 60) day review period, the applicant may provide

notice that the time period for acting has lapsed and the application is then deemed

approved."

Reading Sec. 2: 383( A)( 1)( b) in pari materia with Subsection ( A)(2), since

there is nothing in the record to establish that the City -Parish made its final

decision to approve or deny the application within 60 days as mandated under Sec.

2: 383( A)( 1)( b), it simply failed to act. There is no discretion given the City -Parish

under the provisions of the ordinance. Upon notice by Baldridge " that the time

period for acting has lapsed," the application was deemed approved. Therefore, the

trial court correctly ordered the City -Parish to issue the permit to Baldridge and

that the alternative writ of mandamus be made peremptory as to the eleven

locations identified in the judgment.

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