Dorsey Development DG, L.L.C. v. Tangipahoa Parish Council-President Government and Tangipahoa Parish Planning Commission

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0271

DORSEY DEVELOPMENT DG, L.L.C.

VERSUS

TANGIPAHOA PARISH COUNCIL -PRESIDENT GOVERNMENT AND
TANGIPAHOA PARISH PLANNING COMMISSION

Judgment Rendered. OCT 0 3 2024

Appealed from the
Al 21st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Case No. 2023- 1289, Division D

The Honorable Brian K. Abels, Judge Presiding

Andre G. Coudrain Counsel for Plaintiff/Appellant
Brittany L. Schroder Michael Dorsey Development DG, L.L.C.
Hammond, Louisiana and Loucile Comish/ Intervenor

Christopher M. Moody Counsel for Defendants/ Appellees
Albert D. Giraud Tangipahoa Parish Council -
Hammond, Louisiana President Government and
Tangipahoa Parish Planning
Commission

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

THERIOT, J.

In this suit arising from the denial of a commercial development application

by the Tangipahoa Parish Council -President Government (" Council") and the

Tangipahoa Parish Planning Commission (" Planning Commission"), the developer

For the
and the property owner appeal the trial court' s dismissal of their suit.

reasons set forth herein, we reverse.

FACTS AND PROCEDURAL HISTORY

Dorsey Development Company, L.L.C. (" Dorsey") is a commercial real

estate development and construction company and a preferred developer for Dollar

General. On July 25, 2022, Dorsey entered into a purchase agreement with

Loucile Cornish to purchase 2. 65 acres of land located on the southwest corner of

La. Hwy. 22 and Dutch Lane (" the Property") in Pontchatoula, Louisiana for the

purpose of developing a Dollar General store on the site (" the Project"). Dorsey

also entered into a lease agreement with Dollar General for the Property. Both the

purchase agreement and the lease agreement were contingent upon the allowed use

of the Property for the construction and development of a Dollar General store.

Thereafter, on January 3, 2023, Dorsey, through its authorized agent, Gregory

Bivin, submitted a Commercial Development Application to the Tangipahoa Parish

Planning Department, seeking approval to develop the Property for a Dollar

General Market store,' along with the required documentation, including site plans,

drainage calculations, wetlands determination, DOTD permit, storm water

pollution prevention plan, 911 address verification letter, LDH approval, and sewer

treatment plant permit.' On February 27, 2023, Dorsey was notified by the

I A Dollar General Market store is larger than a typical Dollar General store ( 12, 480 square feet vs. 9, 100 square
feet) and offers a more diverse and expanded food selection than typical Dollar General stores, including fresh fruits
and vegetables and a variety of meat and dairy products, as well as an increased assortment of cough and cold,
dental, nutritional, medical, health aids, and feminine hygiene products.

2 The LDH approval and sewer treatment plant permit were not submitted with the application, but were provided at
a later date.

2

Planning Department that the Project " satisfied all requirements needed to proceed

to the Planning Commission meeting."

The Planning Commission held a public hearing on Dorsey' s request for
approval on March 7, 2023. 3 Planning Director Tracie Schiliace presented the

Project satisfied all
request to the Planning Commission, noting that the

requirements for approval by the Planning Commission. Counsel for Dorsey,

Andre Coudrain, presented the Project at the hearing and answered questions.

Eleven citizens spoke in opposition to Dorsey' s request at the hearing. Concerns

raised by the citizens who spoke at the public hearing included concerns about

crime, increased traffic, drainage problems, the impact on " mom and pop"

businesses in the area, diminished property values for homes in the area, and

property conditions at other Dollar General stores, such as cluttered aisles and

litter. Emails and letters were also submitted to the Planning Commission in

opposition to the Project. After an initial motion to deny Dorsey' s request for

approval failed to pass, a second motion was made by Commissioner Julius Scott

to deny Dorsey' s request " based on the health, safety, and welfare of the residents

of Tangipahoa Parish." This motion passed by a vote of 6- 2, and Dorsey' s

application was denied without any further explanation of the reasons for the

decision.

Dorsey filed an appeal of the Planning Commission' s decision with the
4
Council pursuant to § 36- 4 of the Tangipahoa Parish Code of Ordinances. The

Council held a public hearing on the matter on March 27, 2023, immediately prior

3 An audio recording of the March 7, 2023 Planning Commission meeting is filed in the record before us.

4 Tangipahoa Parish Code of Ordinances § 36- 4 provides:

Sec. 36- 4 - Appeal of a planning commission decision.

Upon an unfavorable ruling upon any development proposal by the planning commission, the
developer/ owner may appeal directly to the parish council. As part of his appeal he must, however,
present the written decisions of the planning commission. It will be brought before the parish
council at a regular meeting and the decision of the parish council will be rendered in writing.

3

to the Council meeting at which Dorsey' s appeal was considered.' The only

documentation of the public hearing is in the Council minutes, which state simply

that seven individuals spoke in opposition to the Project at the public hearing and

Mr. Coudrain spoke on behalf of Dorsey. No further detail was given about the

types of concerns raised at the public hearing or Dorsey' s response to those

concerns. At the Council meeting, Mr. Coudrain presented Dorsey' s appeal to the

Council and explained that since the Project meets all requirements for approval,

the Council' s decision on this matter must have a rational basis and not be arbitrary

or capricious. Following Mr. Coudrain' s statement, Mr. Coudrain and Mr. Bivin

answered questions from the Council. Councilperson Kim Coates asked Mr.

Coudrain whether Dorsey could build something other than " this commercial

facility" on the Property. Mr. Coudrain explained that although Dorsey works on

other projects outside of their work for Dollar General, for this Project, Dorsey is

already engaged with Dollar General and the Property owner, Mrs. Comish, for the

development of a Dollar General store on the Property. Mr. Coudrain suggested

that rather than questioning whether Dorsey could develop the Property for a

different purpose, Councilperson Coates should ask Mrs. Cornish whether she

could sell the Property for a comparable price to a different purchaser for a

different use. Councilperson Joey Mayeaux asked how Dorsey or Dollar General

determines when and where to build another Dollar General. Mr. Bivin explained

that Dollar General does demographic research to determine whether a Dollar

General store will be profitable in a given area. In the event that Dollar General

determines that a store will be profitable in a specific area, as it did in this case, it

then provides Dorsey with a specific target area, generally at the intersection of a

major highway, and Dorsey attempts to locate property as close to that point as

5 Although a video recording of the Council meeting is filed in the record of this matter, the video begins midway
through the Council meeting when the Council took up the matter of Dorsey' s appeal. The public hearing, which
took place before the start of the meeting, is not included in the video.

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possible to purchase for development. Finally, the parish attorney asked whether

Dorsey acknowledges that the Property could be used for some other commercial

or private purpose, such as a coffee shop, bed and breakfast, or a private residence,

or whether Dorsey contends that the Property is being taken out of commerce by

the denial of its application. Mr. Bivin answered that Dorsey does not own the

property, and that question would be more appropriately directed to the Property

owner, Mrs. Cornish. Mr. Coudrain added that the Property owner' s hypothetical

ability to use the Property for any other private or commercial purpose would be

subject to applicable development rules. There were no other questions at this

point, and the Council Chair, David Vial, called for a motion on the matter. No

motion was made, and Council Chair Vial declared that the ruling of the Planning

Commission would stand. Although the Council minutes reflect this disposition of

Dorsey' s appeal, no reasons were provided for the decision.

On April 10, 2023, Dorsey filed suit against the Tangipahoa Parish Council -

President Government and the Tangipahoa Parish Planning Commission, seeking

declaratory judgment, approval of its application, and issuance of the permit.

Dorsey alleges that the Property is not zoned, the intended use is an allowed use,

and its permit application meets all of the requirements of the Parish development

ordinance. Furthermore, neither the Planning Commission nor the Council

identified a specific problem or manner in which the Project failed to protect the

public health, safety, or general welfare of residents. Dorsey alleges that the

Planning Commission' s denial of its permit application and the Council' s refusal to

grant its appeal and reverse the Planning Commission' s decision were arbitrary,

capricious, and without any rational basis as to the health, safety, or welfare of the

residents.

Dorsey sought a declaratory judgment declaring the actions of the Planning

Commission and the Council to be arbitrary and capricious and having no rational

6

basis; an order for the Planning Commission or the Council to approve its permit
application and issue a permit for the Project; and an award of damages to the

extent the wrongful actions of the Planning Commission and the Council result in

damages to Dorsey, including, but not limited to, lost profits, loss of preferred

developer status, and the costs incurred in obtaining contractual agreements,

approvals, and permits in furtherance of the Project, as well as reasonable attorney

fees and costs.

The owner of the Property, Loucile Cornish, intervened in the suit, alleging

that the actions of the Planning Commission and Council were arbitrary and

capricious and an abuse of discretion. Mrs. Cornish' s petition further alleged that

the denial of Dorsey' s application will prevent her from the lawful and allowed use

of her property and result in the loss of the sale of her property to Dorsey at an

attractive price. Mrs. Cornish sought a declaratory judgment declaring that the

actions of the Planning Commission and the Council were arbitrary and capricious

and having no rational basis and an abuse of discretion; an order that the

Commission or the Council approve Dorsey' s application; and an award of

damages to the extent that the wrongful actions of the Planning Commission and

Council result in damages, as well as court costs, attorney fees, and litigation

expenses.

Dorsey and Mrs. Cornish supplemented and amended their petitions on

August 3, 2023 to add additional allegations regarding their damages and to assert

claims for violations of their rights under the Louisiana and United States

Constitutions. The constitutional claims were based on the fact that the Planning

Commission had previously approved the development of other Dollar General

stores ( and other similar stores) in other locations in Tangipahoa Parish, but denied

Dorsey and Mrs. Cornish' s request for approval for the Project arbitrarily,

capriciously, and without reasonable or justifiable cause.

I

In a joint pretrial order signed by counsel for the parties, the parties agreed

to a number of uncontested material facts, including: the Planning Commission

has previously approved other Dollar General stores in Tangipahoa Parish;

Dorsey' s application does not request a variance from any Tangipahoa Parish or

Planning Commission requirements; Dorsey' s application does not violate any

parish land use restrictions; the Project is an allowed use of the Property under all

applicable zoning laws; the application and the documents filed in support meet all

site plan rules of the parish and the Planning Commission; Dorsey ordered and

submitted a voluntary traffic study to the Planning Commission that concluded that

no additional roadway improvements were required; a dedicated center/left turn

lane on La. Hwy. 22 in the area of the Property is already in existence; Dorsey

obtained approval for the Project from DOTD, the State Fire Marshal, and the

Louisiana Department of Health; the Project' s drainage design was approved by

the parish engineer and the parish Drainage Board, whose members are also

members of the Council; the Planning Commission' s denial of Dorsey' s

application based on health, safety, and welfare did not provide any further

explanation for the reasons for the denial; and Dorsey' s appeal to the Council was

timely.

On joint motion of the parties, the trial of the matter was bifurcated, with the

issue of liability set for a bench trial on September 20, 2023. The parties agreed

that, depending on the outcome of the liability portion of the trial, trial on the issue

of damages would be set for a later date.

Gregory Bivin, director of Dorsey' s permit department, testified at length at

trial regarding his experience developing Dollar General stores and this Project in

particular, and addressed the concerns expressed by opponents to the Project.

According to Mr. Bivin' s testimony, Dorsey has received approval for twelve

Dollar General stores in Tangipahoa Parish since 2012, and he has personally

7

worked on four Dollar General store projects in Tangipahoa Parish since beginning

his employment with Dorsey four years earlier, although none of the existing stores

in Tangipahoa Parish are Dollar General Market stores. Mr. Bivin explained that

Dollar General does extensive demographic research before proposing locations to

Dorsey for development, and Dollar General Market stores are chosen for areas
with a higher average median income, because those stores sell more " premium

type products," rather than the discounted products that a traditional Dollar

General store might sell. Mr. Bivin identified some of the differences between

Dollar General Market stores and traditional Dollar General stores: Dollar General

Market stores are significantly larger than the traditional Dollar General stores,

primarily to accommodate the additional grocery items that they provide; Dollar

General Market stores have a significantly increased amount of perishable items,

such as fresh fruit, food, vegetables, produce, meats, and bakery items; the exterior

architecture of Dollar General Market stores is " upgraded" to a more attractive

design, with new signage; and the interior of Dollar General Market stores has " a

more open feel," with somewhat wider aisles and not as much " clutter." Mr. Bivin

explained that he believes that development of a Dollar General Market store on

the Property would be good for the community of "6, 000 or so people that live in a

two mile radius" because it would provide " a nice store with fresh fruits and

vegetables and the expanded grocery store items, more premium products, in an

area that is between two grocery stores in two different towns." He also projected

that the Project would generate sales tax revenue of $1. 1 million to the parish over

fifteen years.

Mr. Bivin testified that prior to beginning the Project, he reviewed the

parish' s land use ordinances to be sure that the Project and site would meet all

requirements of the municipality. In this case, he found nothing in the pertinent

land use ordinances that would prevent the development of a Dollar General

Market store on the Property. After entering into the purchase agreement with

Mrs. Cornish and the lease agreement with Dollar General, Dorsey engaged testing

labs, surveyors, engineers, architects, and structural engineers to begin developing

plans, drainage studies, and traffic studies' for the application, at considerable

expense to Dorsey. Dorsey provided the Planning Commission with all necessary

approvals and information required for the Project, including approvals by DOTD,

the State Fire Marshal, and the Louisiana Department of Health, and a wetlands

determination, and was notified that the Project satisfied all technical review

requirements and was approved to proceed to the Planning Commission meeting

for approval. As a supplement to its application, Mr. Bivin prepared a PowerPoint

presentation on the Project for the Planning Commission hearing that included

photographs and information on the concept of Dollar General Market stores and

how they differ from traditional Dollar General stores, the site plan, the various

approvals obtained for the Project, job creation estimates, and information about

Dollar General' s charitable endeavors and investment in the communities in which

it operates.

Although many residents opposed to the Project expressed concerns about

delivery trucks backing into the parking lot or blocking the highway, Mr. Bivin

explained that one requirement to obtain DOTD approval for a site plan is that

delivery trucks must be able to enter the site, make the delivery, and exit the site

without blocking traffic. Due to this DOTD requirement, Dollar General requires

Dorsey to submit a site plan, prepared by an engineer, that depicts a delivery

truck' s turning movements, showing the truck coming from either direction and

being able to pull in and back up to the delivery area in a single movement without

crossing any parking spaces. Mr. Bivin testified that the ability to complete that

6 Mr. Bivin testified that although DOTD did not require a traffic study for the Project, the Planning Commission
had previously requested that Dorsey obtain and submit a traffic study for its consideration on all future projects,
whether or not one was required by the parish or by DOTD.

maneuver is a very early consideration for Dollar General, and Dollar General has
not approved any proposed project for Dorsey in the last ten years or so that cannot

satisfy this requirement. In the instant matter, he testified that the site plan

approved by Dollar General and by DOTD and submitted to the Planning
for the Project satisfied these
Commission with Dorsey' s application

requirements.' On cross- examination, Mr. Bivin was shown a photograph

depicting a delivery truck parked on the shoulder of a road in front of a Dollar
General store while making a delivery. After reviewing the photograph, he

testified that the store appeared to be " an older store [ that] may have been

developed before DOTD and [ Dollar General] were reviewing the Auto -TURN

movements," and pointed out that the parking lot in the photograph is different in

design from the parking lot planned for the Project and would not have allowed the

truck to perform the maneuvers depicted in the engineered site plan for the Project.

Mr. Bivin explained:

T] he design [ ofthe parking lot depicted in the photograph] is
different. When you center the driveway on the parking lot like that,
that truck can' t maneuver in, nose to the side, and then back into a
space. Sogenerally, on our newer projects, that [ driveway] would be
offset so that the truck could pull in the front, pull across the front of
the store and back up to the delivery area.

He expressed confidence in the site plan design and the turning maneuvers

calculated and approved by engineers for the Project in order to prevent such

problems with delivery trucks. Nevertheless, in the event that a delivery driver

chooses to park on the shoulder of the highway to make a delivery, Mr. Bivin

pointed out that law enforcement could be called upon to issue a citation to the

driver and rectify the situation. Finally, regarding residents' concerns over traffic

issues created by the Project, Mr. Bivin noted that there is already a dedicated

turning lane on Highway 22 for the Property, and Dorsey obtained a traffic study

Mr. Bivin could not say for certain whether the site plan submitted to the Planning Commission with Dorsey' s
application included the additional diagram showing turning maneuvers, as that diagram was only needed for Dollar
General and DOTD approval.

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for the Project at the Planning Commission' s request and submitted the traffic

study with its application, along with the DOTD approval.

Mr. Bivin also testified about the drainage concerns raised by residents, who

believe that the Project will cause flooding in the area. Mr. Bivin explained that

the drainage study obtained by Dorsey for the Project concluded that there would

be less water leaving the site in the post -development state than in the pre -

development state. This drainage study, prepared by engineering firm SJB Group,

LLC, was submitted to the Planning Commission with Dorsey' s application and

introduced into evidence at the trial. The drainage study notes that the Property is

currently undeveloped land with dense woods that drains into existing roadside

ditches and that the proposed improvements to the property will include onsite

installation of a dry detention basin and subsurface drainage in order to maintain

pre -developed flow rates and patterns. The drainage study concludes:

Based on the calculations provided in this report, the proposed

development will reduce the 25 -year and 100 -year peak runoffs from
the property by greater than 10% due to detention provided.
Therefore, it is our opinion that this development, with the

improvements proposed, will be acceptable with respect to storm
drainage.

Mr. Bivin also disagreed with the concerns expressed about the cluttered

condition of Dollar General stores, stating that he had visited four Dollar General

stores in the week or so before trial, three of which were in close proximity to the

Property, and found all four stores to look nice, with clean aisles that were " all

picked up." He testified that Dorsey' s store designs, including aisle widths, are

ADA -compliant and approved by the State Fire Marshal. Nevertheless, once a

store is opened, if the aisles are blocked by boxes, any safety violations could be

addressed by the Louisiana Fire Marshal or local code enforcement.

Tangipahoa Parish resident Virgil Allen, who spoke in opposition to the

Project at the Planning Commission' s public hearing and at the public hearing

before the Council meeting, testified at trial about his opposition to the Project.

Mr. Allen lives approximately 1, 500 feet from the Property, and he has many

relatives who also live close to the Property. Mr. Allen testified that his opposition

is based on concern for the general health, welfare, and safety of his community.

He expressed concern that the Project would create dangerous traffic conditions,

since the Property is in a residential area where school buses make frequent stops.

He also expressed concern about drainage issues arising from the Project. While

Mr. Allen admitted that he is aware of the drainage study concluding that there

would be less water leaving the site post -development than pre -development, he

does not agree with the engineering firm' s conclusion. Mr. Allen testified that he

has lived in the area for fifty-five years and has observed water levels rising as

more and more houses are built and slabs and concrete replace trees, dirt, and

grass. Mr. Allen testified that he believes the additional concrete resulting from

development of the Property will cause homes adjacent to the Property to flood in

the event of a major storm. Mr. Allen also expressed concern that, since the

Property is located outside of the city limits, the Project would take sales tax

revenue away from the city of Pontchatoula, and if the Project is approved, the

existing " quality" grocery stores in surrounding communities may close down and

a " criminal element" will be attracted to the area. Mr. Allen also took issue with

the fact that Dollar General is not a local business and, in his experience, has not

made charitable contributions to the community.

Planning Commission Member Julius Scott testified about the Planning

Commission' s consideration and denial of Dorsey' s application. Commissioner

Scott made the motion to deny Dorsey' s application for the health, safety, and

welfare of the residents of Tangipahoa Parish. He acknowledged that the public' s

opposition to the Project was " probably one of the biggest oppositions I think

we' ve ever seen at the planning board meeting," but testified that his decision to

12

vote against the Project was based on health, safety, and welfare, rather than

simply the amount of opposition the Project received. Mr. Scott' s biggest concern

with the Project was traffic, although he admitted that he did not review the traffic

He expressed concern about the
study submitted by Dorsey with its application.

close proximity of the parking lot entrance to an intersection, as well as the

likelihood that 18 -wheelers would back into the parking lot from the highway. Mr.

Scott admitted that he had seen the site plan diagram prepared for Dollar General

depicting turning maneuvers for delivery trucks, but maintained that he still had
doubts based on his personal experience driving 18 -wheelers that these maneuvers

could be executed easily or safely by anyone but a very skilled driver. In addition

to his traffic concerns, Mr. Scott also had concerns about property conditions at

dollar stores. Mr. Scott testified that the Dollar General store near his home is a

nice store" and is always clean; however, he testified that this is not the norm, and

his observations of cluttered aisles and litter at other dollar stores factored into his

vote against the Project.

Tangipahoa Parish Councilperson Kim Coates testified that the Property is

located in her Council district, and the residents of her district oppose the Project.

She testified that she received emails from concerned citizens opposing the Project,

as well as an online petition signed by at least 700 people opposing the Project.

However, she acknowledged on cross- examination that many of the signatures on

the online petition were from people who lived either out of state or outside of the

area. In addition to considering her constituents' opinions, Ms. Coates testified

that she did her own research on the internet about dollar stores. The articles she

read online about crime and poor labor practices at dollar stores " backed up" her

personal beliefs about the Project, although she admitted that she has never been in

a Dollar General Market store before. Ms. Coates expressed concerns about

drainage and increased 18 -wheeler traffic in the area, and she testified that she had

13

personally observed 18 -wheelers at other Dollar General store locations backing in
Despite
from the highway or parking on the shoulder of the highway to unload.

her expressed concerns about increased traffic, she testified that she did not review

Ms. Coates was
the traffic study submitted by Dorsey and approved by DOTD.

also opposed to the Project because of its location outside of the city limits, which

she explained is harmful to the city' s economy because it takes tax dollars away

from the city. Finally, Ms. Coates expressed vague concern about " blight" in the

event that the Dollar General Market store closed down and a vacant building

remained on the Property. Despite her strong opposition to the Project, Ms. Coates

testified that she did not make a motion to deny Dorsey' s appeal when the matter

was before the Council because she " just didn' t want to make a motion at all ...

because] I didn' t feel like that [ sic] it needed it." Since no motion was made, the

Council did not vote on the issue.

Tangipahoa Parish Councilperson Brigette Delatte Hyde also testified at trial

concerning Dorsey' s appeal to the Council. Ms. Hyde testified that she had not

decided how she would vote on the matter prior to the Council hearing, and since

no motion was made to grant or deny the appeal, she never had the opportunity to

vote on the matter. Nevertheless, she testified that the three " dollar stores" in her

Council district are not well received by residents and that she does not want any

more dollar stores in her district. Her concerns about the Project, which are based

on her personal experiences with other Dollar General stores, include traffic, safety

of store employees and customers, and problems with litter. Despite these

concerns, Ms. Hyde testified that she did not make a motion to deny Dorsey' s

appeal because the Project is not in her district and that Council members typically

do not make motions in matters concerning another Council member' s district.

Loucile Cornish, the current owner of the Property, testified that she has

lived on or near the Property for many years and believes that the Project is a good

14

thing for the community. The Property was originally part of a larger seven -acre

tract of land Mrs. Comish' s husband inherited from his father. Mrs. Cornish

testified that she and her husband lived on the larger tract for about ten years

before subdividing the land into three tracts of approximately two and a half acres
each for sale. Two of the three subdivided tracts have already been sold, and a

house has been built on one tract and apartments have been built on the other. The

Property at issue in this matter is the last remaining tract she has for sale. She

testified that Dorsey has agreed to purchase the Property for $ 210, 000. 00;

however, Dorsey' s offer is contingent upon approval to develop the Property for a
Dollar General Market store. Mrs. Cornish has only received one other offer to

purchase the Property. That offer was for $ 50, 000.00, which she considered " very

low." Regarding the opposition to the Project from area residents, Mrs. Cornish

testified that she has lived in a subdivision close to the Property for the last twenty
years, and as a resident of the area, she believes that the development of a Dollar

General Market store on the Property would be good for the area because there are

currently no other stores close by that offer meat and fresh produce. Mrs. Cornish

is familiar with Dollar General Market stores and has been in Dollar General

Market stores in other locations, and she disagrees with the concerns raised about

the Project.

The defendants' expert, Kennedy Smith, testified at trial via Zoom. Ms.

Smith was accepted by the court as an expert in community economic

development. Ms. Smith testified, based on her research, about various problems

created by dollar stores, such as threatening existing and potential businesses in the

area, especially grocery stores; creating fewer jobs with lower wages than other

stores; increasing crime; and extracting wealth from the community. Ms. Smith

testified that, based on her research, there is not sufficient market demand to

support a new store of any kind on the Property, and the proposed Dollar General

15

Market store would have a negative impact on other stores in the area, potentially

displacing about ... 1. 4 million dollars in sales from other businesses that are

nearby."

The trial court issued written reasons for judgment dated November 8, 2023,

in which it found that the Planning Commission and the Council acted in

accordance with Tangipahoa Parish Code of Ordinances § 36- 21 in denying

Dorsey' s request based on the health, safety, and welfare of the residents of the

area.
The trial court found that the Planning Commission and the Council did not

act arbitrarily or capriciously and that " their decisions were actually motivated by

concerns which are rationally related to legitimate governmental interests like

public health, safety, and the general welfare ( specifically traffic and drainage

concerns)."
The trial court issued a judgment on January 15, 2024 dismissing the

action in its entirety. This devolutive appeal followed, in which Dorsey and Mrs.

Cornish assign the following as error:

1. When considering the Tangipahoa Planning Commission' s denial
of a fully compliant application for a use by right, the trial court erred
in applying a rational basis standard rather than a strict scrutiny
standard, in placing the burden of proof on the owner/ developer rather
than the local government, and in supporting the denial with a factual
conclusion contrary to existing Parish Ordinances.

8 Tangipahoa Parish Code of Ordinances § 36- 2 provides:

36- 2 — Purpose

a) These regulations by the ordinance from which this chapter is derived are aimed at
guiding/visualizing development in accordance with the future needs of the parish in order to
protect, promote and improve the public health, safety, morals, convenience, order, appearance,
prosperity and general welfare.

b) The regulations enacted by the ordinance from which this chapter is derived are designed to
exercise the full range of authority available to the parish under state law to:

1) Promote the public health, safety and general welfare, while recognizing the rights of
real property owners, by adopting a development ordinance.

2) Lessen congestion in streets and to secure safety from natural disaster, fire, panic and
other dangers.

3) Facilitate the adequate provisions of streets, water, sewerage, drainage and other
public requirements by establishing minimum standards.

4) Carry out such other purposes in the public interest as may be specifically cited in
these regulations.

16

2. The Tangipahoa Planning Commission' s denial of the application
was unreasonable, arbitrary, and capricious when it failed to construe
the existing] Parish Ordinances in favor of the use proposed by the
owner or apply them uniformly, it disregarded factual evidence
required by Parish Ordinances produced in the Application, and it
relied on public opinions and personal speculations
solely
unsupported by evidence.

DISCUSSION

Where, as here, a property owner seeks to use his or her land in compliance

with the applicable zoning, requiring no variances or special uses, and conforming

to every modification imposed by law, that property owner is seeking to exercise

his or her " use by right." Honeybee Holdings, LLC v. St. Tammany Parish Zoning

In a
Commission, 2023- 1051, p. 14, n. 8 ( La.App. 1 Cir. 5/ 31/ 24), --- So. 3d ---, ---.

situation when a landowner seeks a use by right, the use by right should be

presumptively valid and approved. Id.

A legislative body' s decision to deny a use by right, in compliance with the

applicable zoning ordinances, is subject to strict scrutiny, not the normal standard

of broad discretion applied to variance cases. Zachary Housing Partners, L.L. C. v.

City of Zachary, 2012- 1952, p. 4 ( La.App. 1 Cir. 10/ 10/ 13), 185 So. 3d 1, 4, writ

denied, 2013- 2615 ( La. 2/ 7/ 14), 131 So. 3d 864.9 The reviewing court does not

consider whether the trial court manifestly erred in its findings, but whether the

legislative body acted arbitrarily, capriciously, or with any calculated or prejudicial

lack of discretion. The test of whether an action is arbitrary or capricious is

9 In Zachary Housing Partners, L.L.C., the plaintiff's use by right application to develop an apartment complex was
denied by the City Council. At the City Council meeting where the application was considered, members of the
community expressed concerns about the oversaturation of apartment complexes in the city, flooding, sewage and
drainage, traffic (specifically, non-resident students catching buses at apartment complexes located in the city), fire,
noise, lighting, impact on wildlife, property values, potential apartment complex residents ruining the local school
system, and the attraction of "riff-raff" to the area. Despite the concerns raised by the community in opposition to
the project, the City Council' s sole articulated reason for the denial of the plaintiff' s application was
incompatibility" with the city' s Master Plan. Although the plaintiff was attempting to use the land in accordance
with its current official zoning designation, i. e., " Residential/ Urban," the city' s Master Plan designated the future
use of the property as " Agricultural and forestry," which meant that at some undetermined point in the future, the
property would be rezoned based on the future land use designation set forth in the Master Plan. The trial court
found, and this Court agreed on appeal, that the City Council' s denial of the plaintiff' s use by right of its land under
these circumstances was arbitrary and capricious and " teeters dangerously on the edge of becoming an
unconstitutional taking of property and a due process violation." Zachary Housing Partners, L.L.C., 2012- 1952 at p.
10, 185 So. 3d at 7.

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whether the action is reasonable under the circumstances. Zachary Housing

Partners, L.L.C., 2012- 1952 at pp. 4- 5, 185 So. 3d at 4.

Additionally, while a legislative body may take into account certain factors

affecting the public, such as public safety, health, and general welfare, in

considering a use by right application, those concerns must be legitimate public

concerns and supported by evidence in order to meet the heightened burden

imposed on the legislative body in a use by right situation. See Falcon v. Parish of

Jefferson, 2022- 526, p. 12 ( La.App. 5 Cir. 6/ 14/ 23), 367 So. 3d 857, 865- 66. 10

Tangipahoa Parish Code of Ordinances § 36- 2 sets forth the purpose of the

Planning and Development regulations and states that those regulations are

designed to exercise the full range of authority available to the parish under state

law to . . . [ p] romote the public health, safety[,] and general welfare, while

recognizing the rights of real property owners, by adopting a development

ordinance." ( Emphasis added). However, no development ordinance was adopted

that would prevent the proposed use of the Property for the Project, and it is

io In Falcon, the plaintiff's use by right application to develop a subdivision was denied by the Council after
concerns were raised by residents of a nearby neighborhood about the development exacerbating existing traffic and
speeding problems in the area and negatively impacting quality of life. The trial court found that the Council' s
denial was arbitrary and capricious, noting that although concerns from residents may be a factor of consideration,
the Council cannot rely solely on the residents' opinions to deny a use by right application. The trial court pointed
out that there appeared to be " several workarounds to ease the potential for traffic," but none were explored by the
Council before denying the developer' s application. Falcon, 2022- 526 at p. 5- 6, 367 So.3d at 861- 62. On appeal,
the Fifth Circuit affirmed, finding that the Council' s decision did not meet the heightened burden imposed in a use
by right situation and was unreasonable, arbitrary, and capricious. The Court noted that there was no support in the
record for the residents' speculation that the development would allow for an extra 100 cars per day and contribute
to speeding issues. The Court also pointed out that a resident who testified at the hearings and at trial about his
speeding concerns admitted that he had not called the Sheriff' s Office regarding the speeding issues or requested
stop signs for the street and acknowledged that a viable option for dealing with the concerns would be to have law
enforcement enforce the law. Falcon, 2022- 526 at pp. 13- 15, 367 So.3d at 866- 67. Finding that the asserted
legitimate safety concerns were unsupported by evidence, the Court concluded:

U] nder the particular facts and circumstances presented in this case, the Council' s decision to
deny the plaintiff' s application for resubdivision bears so little relationship to public safety, health,
or general welfare as to render it unreasonable, arbitrary, and capricious. While we do not take the
concerns voiced by neighborhood residents regarding the current traffic violations in their
neighborhood lightly, we find that there is simply no evidence in the record that supports the
conclusion that approval of the plaintiff' s resubdivision would exacerbate the traffic violations in
their neighborhood. The remedy for the issues that the neighborhood residents are experiencing
with traffic violations is through traffic enforcement by the appropriate authorities, not the denial
of the plaintiffs resubdivision based on mere unsupported speculation that it would contribute to
those problems.

Falcon, 2022- 526 at pp. 14- 15, 367 So. 3d at 867.

uncontested that the Project does not violate any land use restrictions and is an

allowed use of the Property under all applicable zoning laws.

The Planning Commission voted to deny Dorsey' s use by right application
based on the " health, safety, and welfare of the residents of Tangipahoa Parish,"

with no further explanation of the reasons for the denial provided. Since the

Planning Commission failed to provide an explanation for the denial, we are
somewhat limited in our assessment of the reasonableness under the circumstances

However, a review of the documents
of the Planning Commission' s decision.

submitted to the Planning Commission for consideration, the audio recording of

the Planning Commission hearing, and the testimony of Commissioner Scott is

helpful.

It is clear from the audio recording of the Planning Commission hearing that

there was a large, vocal, and at times unruly crowd present at the hearing to oppose

the Project, who continued to argue loudly with the Commissioners when told that

there was no basis upon which Dorsey' s application could be denied, until the

Planning Commission eventually voted to deny the application based on health,

and welfare concerns without any further explanation. Nevertheless,
safety,

Commissioner Scott testified at trial that his motion and vote to deny the

application were not based on the amount of opposition from the public, but rather

on concerns for the health, safety, and welfare of the community. He identified

traffic as his biggest concern with the Project. However, the fact that he

admittedly did not review the traffic study obtained and submitted by Dorsey at the

request of the Planning Commission casts doubt on the reasonableness of the

decision to deny the application based on traffic concerns. Commissioner Scott

also expressed skepticism that delivery truck drivers could maneuver around the

proposed parking lot without backing in from the highway, despite Dorsey' s

engineered site plan diagram showing that the parking lot design allowed this to be

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done. Finally, Commissioner Scott expressed concerns about poor property

conditions at some stores, even though he testified that the Dollar General store

near his home is very nice and clean. When questioned about the absence of facts

and evidence to back up his stated concerns for health, safety, and welfare,

Commissioner Scott explained that he does not believe that he has to rely on the

various drawings, studies, and approvals submitted for the Project, since he

believed " a lot of those approvals are just rubber stamped," and since he feels in

his heart that his personal opinion on the matter should be enough. Additionally,

although several residents who spoke at the Planning Commission hearing

expressed concerns about drainage problems that would result from the

development, the drainage study submitted by Dorsey concluded that the planned

improvements would actually improve drainage. Finally, although a number of

other concerns were raised by residents, such as crime, diminished property values,

and damage to " mom and pop" businesses in the area, no evidence was offered to

show how the Project proposed by Dorsey differed from the other Dollar General

stores previously approved by the Planning Commission so as to warrant denial of

this application based on these concerns. After a thorough review of the evidence,

and applying strict scrutiny to the Planning Commission' s decision to deny

Dorsey' s use by right application, we cannot say that the Planning Commission' s

decision was reasonable under the circumstances.

Further, although Tangipahoa Parish Code of Ordinances § 36- 4 provides for

an appeal of Planning Commission decisions by the developer/owner directly to

the Council, after which " the decision of the parish council will be rendered in

writing," the only written decision arguably rendered by the Council was in the

minutes of the Council meeting:

REQUEST FOR APPEAL of Planning Commission decision dated
3/ 7/ 23 by applicant Dorsey Development, LLC, Dollar General Store
2023- 11, 12334 Hwy 22 West, Pontchatoula, LA, District 10 Andre

Coundrain, Legal Counsel for Dorsey Develoment asked the council
to grant the appeal and approve the application. After questions and
discussion, the Chair asked for a motion. With no motion the Chair
made it known that the ruling of the Planning Commission would
stand.

Since the Council did not provide any reasons for its effective denial of the

appeal, the only evidence from which to assess the reasonableness of the Council' s

action is Dorsey' s application and accompanying documentation, the video of the

Council meeting, and the trial testimony of two Council members. Viewing this

limited evidence in light of the particular facts and circumstances of this case, and

considering the heightened burden imposed in use by right situations, we cannot

say that the Council' s decision was based on legitimate concerns for public safety,
health, or general welfare. Accordingly, the Council' s denial of Dorsey' s

application is unreasonable, arbitrary, and capricious, and must be reversed.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court dismissing

the petitions of Dorsey Development Company, L.L.C. and Loucile Cornish with

prejudice is reversed. Costs of this appeal in the amount of $ 3, 887. 50 are assessed

to defendants, Tangipahoa Parish Council -President Government and Tangipahoa

Parish Planning Commission.

REVERSED.

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