Yolande Schexnayder & Son, Inc. Versus Parish of St. James

YOLANDE SCHEXNAYDER & SON, INC. NO. 21-CA-416

VERSUS FIFTH CIRCUIT

PARISH OF ST. JAMES COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 40,298, DIVISION "E"
HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING

March 09, 2022

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.

REVERSED
FHW
JJM

JOHNSON,J., CONCURS WITH REASONS
MEJ

COUNSEL FOR DEFENDANT/APPELLANT,
ST. JAMES PARISH
Victor J. Franckiewicz, Jr.
W. Peter Connick, Jr.

COUNSEL FOR INTERVENOR/APPELLEE,
ST. JAMES CONSTRUCTION MATERIALS, LLC
Robert J. Stefani, Jr.
Patrick T. Isacks

WICKER, J.

This litigation arises out of a land use dispute involving a large, 371-acre

tract of land in St. James Parish referred to as the “Big Shake Pit.” St. James

Parish seeks review of the trial court’s April 7, 2021 granting of a preliminary

injunction, enjoining St. James Parish from requiring “prior approval” to

“excavate, sell and deliver up to 9 million cubic yards of clay material for U.S.

Army Corps of Engineer levee projects or for the use of any necessary utilities or

equipment, including electrical or water services” and, further, enjoining it from

taking any action to prevent such use, including the refusal to issue permits. The

landowner contends that the operation of a borrow pit and the related excavation

on the property is a permitted “nonconforming use” as defined in the Parish’s Land

Use Plan (St. James Parish, LA, Code of Ordinances, § 82-25 (2014)) and thus is

permissible on the property now designated for agricultural and residential use.

Upon our review, we find that the Parish’s Land Use Plan and pertinent law

instructs that the preliminary factual determination as to whether the property at

issue meets the definition of a nonconformity under the Parish ordinance falls

within the jurisdiction and purview of the local governing authority, St. James

Parish. We further find that the trial judge abused his discretion in issuing a

preliminary injunction in this matter where the petitioning party failed to prove that

the injunction would serve to maintain the status quo between the parties. For the

following reasons, we reverse the trial court’s April 7, 2021 judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 9, 2021, Yolande Schexnayder & Son, Inc. (YSS) filed a

“Petition for Declaratory Judgment, Injunctive Relief, and Damages and

Application for Preliminary Judgment” in the Twenty-Third Judicial District Court

for the Parish of St. James. In its Petition, YSS asserted that “[t]his dispute arises

out of St. James Parish's unjustified refusal to issue permits for electrical, water, or

21-CA-416 1

any other utilities or work on the Property.” YSS sought a judgment declaring that

the property at issue “enjoys the status of a legal nonconforming use and that such

use can lawfully continue without the need for approval of the planning

commission or Parish Council of the Parish of St. James.” YSS further sought

damages for the “Parish’s refusal to acknowledge and recognize such status of the

Property as required by law.” Additionally, YSS prayed for injunctive relief under

La. C.C.P. art. 3601 “to permit reasonable and continued use and operation of the

Property as a commercial borrow pit consistent with its past use and operation as

such pending a final trial on the merits to prevent immediate and irreparable harm

to YSS.”

On March 8, 2021, St. James Construction Materials, LLC (SJCM) filed a

Petition for Intervention, claiming that it is the owner of the property at issue and

thus has a justiciable interest in the proceedings. SJCM asserted that its interests

are aligned with YSS and further sought similar declaratory and injunctive relief in

its petition, including relief to enjoin the Parish from prohibiting SJCM to

“excavate, sell and deliver up to 9 million cubic yards of clay material for U.S.

Army Corps of Engineer levee projects or for the use of any necessary utilities or

equipment, including electrical or water services.”1

On March 23, 2021, the trial court conducted a hearing on the preliminary

injunction. At the hearing, various witnesses testified concerning the operation of

“Big Shake Pit” as a borrow pit during various time periods.

Jay Thomas, a representative with Louisiana Earth Corporation (LEC),

testified that following Hurricane Katrina, LEC learned of opportunities related to

rebuilding the levee system from Plaquemines Parish to Saint James Parish. LEC

1
On March 22, 2021, the Parish filed an exception of no right of action, asserting that YSS has no right of
action to bring suit because it sold the property at issue in December 2020. The record reflects that
hearing was set for June 1, 2021, but the judgment on that exception is not in the record nor is it before
this Court.

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and YSS entered into an agreement that LEC would have the right to dig for heavy

clay material on the property, with YSS reserving the right to the topsoil material,

to sell for use in the post-Katrina U.S. Army Corps of Engineers Project. To be

able to contract for the levee project, LEC took on a costly process of obtaining

certification for the clay material to be certified for use with a U.S. Army Corps of

Engineers levee project. He further testified that such levee construction projects

are “long-term” in nature, requiring a $690,000.00 investment to obtain

certification and a long-term bidding process. He testified that the actual digging

for the post-Katrina levee project did not occur until approximately 2011. He

testified that digging occurred for that project in the northwest quadrant of the

property, which resulted in holes or “cells” on the property.

Mr. Thomas testified that when SJCM purchased the property in 2020,

SJCM required, as a part of the purchase, that LEC obtain paperwork for the West

Lakeshore Lake Pontchartrain Levee Project. He testified that LEC began

preparing the property for the West Lakeshore Project in 2011, when they

discovered that the project would be “coming down the line.” He testified that an

LEC representative has attended the Pontchartrain Levee District Meetings, with a

YSS representative present, since that approximate 2011-2012 time frame. The

West Lakeshore Project was very close in proximity to the Big Shake Pit property,

which made the project more lucrative with lower costs to transport the clay.

Mr. Thomas testified that between 2007 and 2012 or 2013, he was

physically present at the property approximately three times per week. He testified

that during that time he regularly observed people digging at the property.

Thereafter, during the time period from 2013 to 2020, he testified that he, on

average, visited the property bimonthly or quarterly. His attorney would conduct

site maintenance inspections or drive by the property almost every weekend, on his

way to his fishing camp. He testified that there was never a six-month period

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between 2013 and 2020 when he did not visit the property and observe “digging or

maintenance work” of some kind being performed on the property. Mr. Thomas

explained that the property has a large sign labeled “Big Shake Property” with his

contact information and that although the property is also used as a sugarcane field,

that use is not to the exclusion of the property’s primary use as a commercial

borrow pit.

Mr. Thomas testified to his understanding that Quiver Construction, owned

and operated by Bryan Schexnayder, had an agreement with YSS that Quiver

would be able to mine the surface material or topsoil, which is required to first be

removed before one can dig for and reach the heavy clay material underground.

However, Mr. Thomas also testified unequivocally that no clay mining of any

heavy clay material took place in the years 2014 through 2020.

Mr. Thomas also testified to the fact that SJMC’s reputation and business

would suffer irreparable harm if they were not permitted to participate in the West

Lakeshore Project. He also acknowledged, however, that LEC did not maintain a

St. James Parish business operating license until the year 2020 and that LEC

contracted with a third-party to operate the pit in 2011-2012 when heavy clay

mining took place.

Stephen Cali, a civil engineer contractor, testified that he has been an

engineer and advisor on the Big Shake Pit property since 2008. He testified that he

continuously monitors the Corps of Engineers’ procurements for dirt, markets Big

Shake Pit to contractors and engineers he knows in the business, and ensures that

all paperwork and permits are up to date. Mr. Cali testified that, after the post-

Katrina levee project was completed in 2013, “there was a lull” in large projects on

the property. Mr. Cali testified that he was aware of the West Lakeshore Project

and he was “constantly monitoring it” and always keeping the property in a “state

of readiness,” meaning keeping the roads maintained and the land clear. He

21-CA-416 4

testified that the funding for the Corps of Engineers to move forward with the West

Lakeshore project was not approved until 2017-2018.

At the preliminary injunction hearing, the Parish introduced into evidence

the affidavit of Glenn Waguespack, the St. James Tax Assessor, who attested that

the property at issue was assessed for “Use Value.” Mr. Waguespack attested that

for the years 2010-2012, the property was designated as Use Value, either

agricultural or marsh land. For the years 2013-2021, with the exception of 55

acres classified as batture lands, the entirety of the property was designated as Use

Value, either as agricultural or timber use. He further attested that a property

owner is required to notify the St. James Assessor Office if a property no longer

qualifies for a designated use for tax purposes. He attested that his search reflects

that no notification has ever been filed to change the designation for tax purposes

of the Big Shake property.

Laddie Rousell testified that he has lived next to the Big Shake Pit since

2005. He testified that he recalls clay mining taking place in approximately 2010

and 2011. He testified that the “cells” or holes in the northwest quadrant of the

property were filled with water and vegetation by 2012, and that all of the mining

equipment was removed from the property by that time. Mr. Rousell testified that

he observed two people with Quiver Construction digging for topsoil in late 2014

into early 2015 and specified that he has not seen any digging for topsoil or any

clay materials in 2020.2

Mr. Rousell testified that he developed a subdivision nearby, which took

place in three separate phases. He testified that he was aware of the St. James

Parish new Land Use Plan, and that such plan factored into his decision to move

2
SJCM introduced into evidence the affidavit of Bryan Schexnayder with Quiver Construction, who
attested that Quiver continuously mined for topsoil on the property from 2013 to the date of the sale of the
property in December 2020. He testified that the activity was continuous but contingent on the demand
for soil and various weather conditions.

21-CA-416 5

forward with a residential subdivision in that area. He testified that he was

required to obtain permitting for each phase and that his most recent subdivision is

adjacent to the property at issue and is a small seven-lot family subdivision with a

children’s playground or playset area incorporated into the subdivision.

At the conclusion of the hearing, the trial judge took the matter under

advisement. On April 7, 2021, the trial judge issued a judgment, granting SJCM’s

application for preliminary injunction and enjoining St. James Parish from

requiring “prior approval” for the “entirety of the 371-acre property” to “excavate,

sell and deliver up to 9 million cubic yards of clay material for U.S. Army Corps of

Engineers levee projects or for the use of any necessary utilities or equipment,

including electrical or water services, backhoes, bulldozers/graders,

dragline/excavators, both tracked or wheeled vehicles, scales, trailers or fuel tanks

in connection with such use…” and, further, enjoining it from taking any action to

prevent such use, including the refusal to issue permits. The trial judge issued

written reasons finding that “from 2013 until the sale of the property to SJCM

there was continuous mining and sale of surface clay material, sometimes referred

to as topsoil, as well as other site maintenance activities.” The trial judge found

that the activities were continuous and thereafter were never abandoned, ceased, or

interrupted for any period longer than six months. The trial court thus found that

the property was used as a borrow pit prior to the enactment of the Land Use Plan

at issue and, thus, was a nonconforming use “grandfathered in” and that any use in

connection with excavation or operating the land as a borrow pit would not require

prior Parish approval.

The trial judge considered the language of the land use ordinance at issue

and found that a property that qualified as a nonconforming use under subsection

(k) of the ordinance does not require Parish approval for any use, including

addition of utilities such as water or electrical or addition of structures such as

21-CA-416 6

trailers or fuel tanks. The trial judge found that because a borrow pit is a unique

property with a limited “capacity” for heavy clay material, such additions did not

increase the “capacity” of the property as referenced in the ordinance and, thus,

prior Parish approval was not required.

The Parish appealed the trial court’s April 7, 2021 preliminary injunction.

On appeal, the Parish first contends that the trial court erred in finding that SJCM

proved continuous “physical use” of the land as a borrow pit consistent with

excavation and mining with no interruption of such activity for any six-month

period. Second, the Parish contends that the trial court misinterpreted subsection

(k) of the applicable St. James Parish ordinance defining a non-conforming use and

improperly determined that the nonconformity subsection serves as a blanket

exemption from other provisions of the ordinance requiring prior Parish approval

for certain uses. Finally, the Parish contends that the trial court impermissibly

substituted its judgment for that of the Parish, where the law commits land use

regulation first to the province of local government.

For the following reasons, we find that the Parish’s assignment of error

concerning interpretation of the Parish ordinance has merit and we find that, under

the facts of this case, SJCM must first seek Parish approval for the use or actions it

sought approval for in its application for preliminary injunction. Consequently,

because the judgment appealed specifically finds that prior Parish approval is

unnecessary and further enjoins the Parish from considering whether the property

at issue is a nonconformity under the ordinance, we reverse the trial court’s April

7, 2021 judgment.

DISCUSSION

On appeal, the Parish contends that the trial court misinterpreted Section 82-

25(k) within the Parish’s Land Use Plan, titled “Nonconformities,” to hold that any

nonconforming use under the ordinance does not require prior Parish approval

21-CA-416 7

when required under other subsections of the ordinance.3 The Parish argues that

the trial court’s interpretation of the ordinance results in “a blanket exemption” for

nonconformities to engage in any activity or use, including connection of utilities

and addition of structures previously not existing, without Parish approval when

generally required under the ordinance’s other provisions.

For the following reasons, we find that, in addition to circumstances when

the use at issue may be considered an “expanded use” under subsection (k), the

Parish ordinance sets forth that prior parish approval through the permit process is

required for any use, whether a conforming or nonconforming use, if a land is large

enough (more than 3 acres) or if the use is impactful enough (requiring state or

federal permits) under subsection (f) of the ordinance. Further, we find that

subsection (k)(6)—which requires a landowner seeking to maintain a

nonconforming use status on a property to file an annual report with the Parish—

reflects the Parish’s intent to require at least an annual review of the property’s use

to ensure that its current use still meets the definition of a nonconformity under the

Land Use Plan. We further find this provision reflects generally the Parish’s intent

in its Land Use Plan to exercise its power to enforce the plan and to make the

preliminary factual determination as to whether a parish property is entitled to

nonconforming use status.

The general authority for local government to regulate land use is conferred

by La. Const. Art. 6, § 17, which provides in part:

Subject to uniform procedures established by law, a local governmental
subdivision may (1) adopt regulations for land use, zoning, and historic
preservation, which authority is declared to be a public purpose; (2)
create commissions and districts to implement those regulations; (3)
review decisions of any such commission; and (4) adopt standards for
use, construction, demolition, and modification of areas and structures.

3
Because we find that this assignment of error has merit requiring reversal of the trial court judgment and
renders moot the remaining assignment of error, we address the Parish’s assignment of error concerning
interpretation of the ordinance and pretermit discussion of the remaining assignments of error.

21-CA-416 8

K.G.T. Holdings, LLC v. Par. of Jefferson, 14-872 (La. App. 5 Cir. 3/25/15), 169

So. 3d 628, 631, writ denied, 15-0810 (La. 6/19/15), 172 So.3d 652.

Land use is subject to the police power of various governing bodies, and the

courts will not interfere with the decisions of these bodies unless it is clear that

their action is without any relation to the public health, safety, or general

welfare. Id; see also Garber v. City of New Orleans Through City Plan. Comm'n,

16-1298 (La. App. 4 Cir. 12/13/17), 234 So.3d 992, 996–97, writ denied sub

nom. Garber v. City of New Orleans, 18-0351 (La. 4/20/18), 240 So.3d 924;

Palermo Land Co., Inc. v. Planning Com'n of Calcasieu Parish, 561 So.2d 482,

491 (La. 1990).

The proper interpretation of the language of a statute or Parish ordinance is a

question of law requiring de novo review. City of Gretna v. Morice, 14-301 (La.

App. 5 Cir. 12/30/14), 167 So.3d 823, 827; see also Normand v. 1st Lake Realty,

Inc., 12-797 (La. App. 5 Cir. 5/23/13), 119 So.3d 610, 613, writ denied, 2013-1482

(La. 10/4/13), 122 So.3d 1020. The statutory and jurisprudential rules for statutory

construction and interpretation apply equally well to ordinances, rules, and

regulations. Landry v. E. Baton Rouge Par. Sheriff's Off., 14-0733 (La. App. 1 Cir.

3/9/15), writ granted, 15-681 (La. 6/30/15), 168 So.3d 378.

When a statute is clear and unambiguous and the application of

the statute does not lead to absurd consequences, the statute must be applied as

written. Smith v. St. Charles Par. Pub. Sch., 17-475 (La. App. 5 Cir. 5/1/18), 246

So.3d 821, 826, writ denied, 18-1001 (La. 10/8/18), 253 So.3d 802. However,

where a literal interpretation would produce absurd consequences, the statute must

be construed so as to produce a reasonable result. O'Brien v. Shepley, 451 So.2d

82, 84 (La. Ct. App. 5th Cir. 1984).

Moreover, where it is possible, courts have a duty in the interpretation of a

law to adopt a construction which harmonizes and reconciles it with other

21-CA-416 9

provisions dealing with the same subject matter. Par. of Jefferson v. Kennedy, 09-

145 (La. App. 5 Cir. 10/27/09), 28 So.3d 301, 303. “All laws pertaining to the

same subject matter must be interpreted in para materia.” Acurio v. Acurio, 2016-

1395 (La. 5/3/17), 224 So. 3d 935, 938, quoting Pierce Foundations, Inc. v. Jaroy

Construction, Inc., 15-785 (La. 5/3/16), 190 So.3d 298, 303. When interpreting the

law, the starting point is the language of the written law itself. Dejoie v. Medley,

08-2223 (La. 5/5/09), 9 So.3d 826, 829.

The ordinance at issue is a part of the Parish’s Land Use Plan, St. James

Parish, LA, Code of Ordinances, § 82-85. Subsection (b) of the ordinance provides

that the Land Use Plan is a “master plan” as that term is used in R.S. 33:109 and

33:109.1 and further that it is “the intention of the parish that all local, regional,

state, and federal entities operating in or making decisions affecting property in the

parish comply with the land use plan to the maximum extent allowable under law.”

Subsection (d) of the ordinance concerns allowable uses as set forth in the Land

Use Plan and provides that such allowable uses “shall be permitted as a matter of

course through the parish’s customary building permit process under chapter 18,

subject to compliance with other applicable ordinance requirements, and except as

otherwise provided in this section.”

Subsection (f), in pertinent part, provides:

Notwithstanding subsection (d) of this section [concerning
allowable uses], the following uses or activities shall not be issued a
building permit until approved by the planning commission (or by the
parish council on appeal):

(1) Any residential building containing three or more dwelling
units.
(2) Any nonresidential development exceeding 10,000 square
feet of building area or sites three acres or more.
(3) Any commercial or industrial development that requires a
state or federal permit for air, water, solid waste, hazardous
materials, or section 404 Wetland/Rivers and Harbors Act
permits.

21-CA-416 10

The planning commission shall act on the proposal under this
subsection, and such decision shall be final unless it is appealed. Any
person aggrieved by the planning commission’s decision under this
subsection may appeal to the parish council in writing within 30 days
of the planning commission’s decision. The parish council shall take up
the appeal as soon as is practical following the written notice of appeal
to the parish council, and shall do so in accordance with the requirement
of the state Open Meetings Law, R.S. 42:11 et seq. The parish council,
in its discretion, may consider the appeal on the basis of the written
record of the matter, or may convene a hearing concerning the appeal.

The following subsection (subsection (g)) in part provides that even “[u]ses

or activities that do not require action by the planning commission (including those

covered by section 18-38(1)) shall be applied for and considered through the

parish’s building permit process under chapter 18.” (emphasis added).

Subsection (k) titled, “Nonconformities” provides:

(k) Nonconformities.

(1) Description. A use of land existing as of the effective date of the
ordinance from which this section is derived and which would not
constitute an allowable use under subsection (c) of this section shall be
considered a nonconformity.
(2) Intention. It is the intention of this section to allow nonconformities to
continue until they are voluntarily closed or removed, but not to
encourage their survival or expansion.
(3) Maintenance, safety, and environmental protection. It is also the
intention of this section to allow nonconformities to perform routine
maintenance, and to allow improvements
limited to improving safety conditions and environmental protection
without being treated as a new use under this section.
(4) Loss of nonconforming status. A nonconformity that discontinues
operation or use for more than six continuous months shall lose its
status as a nonconformity, and shall thereafter be treated as a new use
subject to the provisions of this section. Failure to maintain a reasonable
level of employment compatible with the historic operation of a
nonconformity shall be deemed to be a discontinuation of operations.
The mere presence of security personnel at a nonconformity shall not
be deemed to be a continuation of operations. The burden of proving
that a nonconformity is continuing or has continued operations shall be
borne by the owner, operator, or similarly situated person responsible
for the nonconformity.
(5) Expansions. Any expansion of capacity or enlargement of physical
facilities that would support the future expansion of capacity shall be
considered as a new use subject to the provisions of this section.
(6) Reporting. For a nonconformity to retain its status as such, the owner,
operator, or similarly situated person responsible for the
nonconformity must timely submit an annual Tier 2 report pursuant to

21-CA-416 11

the Right-to-Know Law (R.S. 30:2361 et seq .). Submission of this
report to the parish office of homeland security and emergency
preparedness shall satisfy this requirement. Such submissions shall be
made available to the parish department of operations, planning and
permitting office to allow for verification of the nonconformity’s
status. If a nonconformity is not required to report under the Right-to-
Know Law (R.S. 30:2361 et seq .), the owner, operator, or similarly
situated person responsible for the nonconformity must furnish a copy
of one or more of the following reports to the parish department of
operations, planning and permitting office within 30 days of
submitting the report to the responsible public agency:
a. Its annual toxic chemical release inventory report submitted under
section 313 of the Emergency Planning and Community Right-to-
Know Act of 1986 (42 U.S.C. 11023);
b. Its discharge monitoring report (DMR) submitted under the
Louisiana Pollution Discharge and Elimination System. For those uses
whose DMR is submitted annually, the annual report shall satisfy this
requirement. For those uses that submit DMRs more frequently than
annually, the reports for an entire calendar year may be submitted to
the parish at one time within 30 days of the last DMR submitted for
the calendar year, or the DMRs may be submitted to the parish
incrementally; or
c. Such other report approved in writing by the parish president as
providing information about ongoing operations similar to the reports
described in subsections (k)(6)a and b of this section. (Emphasis
added).

Upon our de novo review of the ordinance, we find that the directions set

forth in subsection (f) require Parish approval for any permitting for a property

three acres or larger or any property that requires other state or federal permits for

its operation. The Big Shake property at issue is 371 acres and, thus, is a tract of

land three-acres or larger as stated in subsection (f)(2).4

The trial court found that subsection (f) does not apply to a property with

nonconforming use status because subsection (f) qualifies that it applies

“notwithstanding subsection (d)” but does not specifically say notwithstanding

subsection (k). Subsection (d) discusses uses that conform with the designation

provided in the Land Use Plan. Therefore, if the landowner of a piece of land that

is three acres or larger and is designated agricultural seeks to use or operate the

4
It is unclear whether the property would be required to seek parish approval under subsection (f)(3).

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land in conformity with its designation (agricultural use), subsection (f) instructs

that the landowner or operator must obtain parish approval for any use, even

though its use is in conformity with the Land Use Plan’s designation. If we apply

the ordinance as interpreted by the trial court, however, a landowner or operator of

a piece of property three acres or larger that is designated agricultural but seeks to

continue to use the property for an industrial or other nonconforming use, would

not have to seek parish approval to operate in a manner not in conformity with the

land use designation and, thus, would be subject to less governmental review than

a property in use as designated pursuant to the Land Use Plan. We find this

interpretation leads to absurd results and does not reasonably comport with the

Parish’s intent set forth in the Land Use Plan.

We find a review of subsection (k)(6), which requires a landowner or

operator who seeks to establish or maintain nonconformity status to file an annual

“report approved in writing by the parish president as providing information about

ongoing operations….” further supports this interpretation. We find this provision

within the ordinance clearly sets forth the Parish’s intent to annually and

consistently review properties with alleged nonconforming use status, regardless of

the size of the land, to ensure that its use is in compliance with the Parish’s Land

Use Plan. The intent of the parish through the ordinance is clear that the Parish

reserves the right to annually make the preliminary factual determination as to

whether a use is a nonconforming use, an expansion of a former use, or a new use

as defined under subsection (k).5 Accordingly, upon our de novo review, we find

that under the facts of this case the trial court erred in its judgment holding that

SJCM is not required to first seek Parish approval to obtain permits and to

“excavate, sell and deliver 9 million cubic yards of clay…. .”

5
Based upon the record before us, it does not appear that YSS, SJCM, or any other operator of the
property at issue filed any annual report with the Parish as required under the ordinance.

21-CA-416 13

We further point out that the record before us lacks any evidence to show

that YSS or SJCM sought any permit approval from the Parish for any use of the

property at issue.6 Moreover, the record lacks evidence of any permit denial,

planning commission decision, or other administrative decision from the Parish for

review. The Parish recently submitted correspondence to this Court pointing this

court to additional case law to consider in connection with its appeal, specifically

New Cingular Wireless, PCS, LLC v. City-Parish of East Baton Rouge, No. 2021

CA 0292, 2021 WL 6331379, La. App. 1 Cir. (12/30/21). The Parish asserted that

the New Cingular Wireless case supports its position “that great deference is due to

the Parish’s interpretation of its land use ordinance.” Moreover, SJCM on appeal

contends that “the Trial Court was under no obligation to “rubber stamp” the

Parish’s position, which itself represented an abrupt reversal of the Parish’s

endorsement of Big Shake’s use as a borrow pit only four months previously.”

Although both parties present arguments on appeal as to whether deference is

owed to the local governing authority’s decisions or actions in land use matters,

neither party introduced into any evidence any documentation to show denial of

the referenced utility permits or any other administrative Parish decision or

determination as to the Property’s use.7 8

6
To the contrary, at the hearing, SJCM introduced into evidence September 8, 2020 correspondence from
Marrill McKarry, the Deputy Director of the Department of Planning and Development for St. James
Parish, to Stephen Cali stating that the “St. James Parish Coastal Management Committee has no
objection” to the Coastal Use Permit application it had submitted to the State. However, the letter further
stated that it should not be “interpreted in any manner which would create any liability on the President
and Council of St. James…and…additional permits or assurances may be required from other state or
federal agencies.”
7
Although the record contains an email from the Parish’s attorney to opposing counsel concerning water
and electrical permits and a concern of how to “get around” the ordinance’s restrictions on
nonconformities, counsel also indicated he would “look at this in more depth and see if anything can be
done.” We cannot find this email constitutes a decision, action, or determination on behalf of the Parish.
8
The trial court, when reviewing the denial of a permit or other land use decision, must review the
decision to determine if the landowner met its burden to prove that the governmental entity which denied
the permit acted in an arbitrary and capricious manner. King v. Caddo Parish Com'n, 97–1873 (La. 1998),
719 So.2d 410; Church v. St. Charles Par., 00-185 (La. App. 5 Cir. 8/29/00), 767 So.2d 913, 916–17, writ
denied, 00-2727 (La. 11/27/00), 775 So.2d 450. Without a permit denial or other determination or
decision from the Parish concerning this property, the trial court could not apply a proper standard of
review.

21-CA-416 14

Upon our review of the record, we further find that the trial judge abused his

discretion in issuing the preliminary injunction based upon the testimony and the

evidence presented at trial. A writ of preliminary injunction is essentially an

interlocutory order issued in a summary proceeding incidental to the main demand

for permanent injunctive relief. It is designed to and serves the purpose of

preventing irreparable harm by preserving the status quo between the parties

pending a determination on the merits of the controversy. Bank One, Nat. Ass’n v.

Velten, 04-2001 (La. App. 4 Cir. 8/17/05), 917 So.2d 454, 458, writ denied, 06-

0040 (La. 4/28/06), 927 So.2d 283; Bally's Louisiana, Inc. v. Louisiana Gaming

Control Board, 99–2617, p. 7 (La. App. 1 Cir. 1/31/01), 807 So.2d 257, 263.

Notwithstanding the ultimate question of whether SJCM’s proposed use of

the land constitutes a nonconformity under the Parish ordinance—upon which we

do not opine—we find that the actions enjoined within the preliminary injunction

in this case do not maintain the status quo between the parties. Specifically, the

evidence presented at the injunction hearing did not establish that any utilities were

previously present at the property or, further, that heavy clay mining consistent

with the ability “to excavate nine million cubic yards of heavy clay” was taking

place at the time of the application for preliminary injunction. Therefore, while we

do not render any opinion on whether the proposed use or action of SJCM

constitutes a nonconformity under the ordinance, we do find that SJCM failed to

meet its burden to prove that the preliminary injunction as issued would be

necessary to maintain the status quo between the parties. Accordingly, we find that

the trial court abused its discretion in issuing the preliminary injunction in this case

and we reverse the trial court’s April 7, 2021 judgment.

REVERSED

21-CA-416 15

YOLANDE SCHEXNAYDER & SON, NO. 21-CA-416
INC.
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
PARISH OF ST. JAMES
STATE OF LOUISIANA

JOHNSON, J., CONCURS WITH REASONS

I, respectfully, concur with the majority opinion and the reversal of the trial

court judgment in this matter. I agree with the majority opinion, insofar it finds

that the trial court abused its discretion in issuing the preliminary injunction based

upon the testimony and evidence presented at trial. I write separately to express

my view on whether St. James Construction Materials, LLC proved any irreparable

injury or loss.

In its request for preliminary injunction, St. James Construction Materials,

LLC (hereinafter referred to as “SJCM”), sought allowance of reasonable

continued use and operation of the property (hereinafter referred to as “Big

Shake”) as a commercial borrow pit consistent with its past use and operation,

namely, excavation of 9 million cubic yards of clay material to support flood

protection levee projects using backhoes, bulldozers/graders, dragline/excavators,

and other tracked or wheeled vehicles, including scales and a trailer, without the

necessity of St. James Parish Council’s (hereinafter referred to as “the Parish”)

approval, to prevent immediate and irreparable harm to SJCM pending a final

decision on the merits. SJCM contended that use of Big Shake as a borrow pit for

supply of clay for the U.S. Army Corps of Engineers’ projects qualified as a

nonconformity as of the effective date of the Ordinance. It further contended that

Big Shake continues to qualify for the nonconforming use as a borrow pit because

it has continued operations, without any interrupting period of six months or

21-CA-416 16

longer, and had no intent to ever abandon or cease use of the nonconforming use.

SJCM maintained that, under the mandatory provisions of the Ordinance relating

to nonconformities, reconnection of the electric and water utilities and installation

of scales were not “new use” activities subject to the Parish’s discretionary

approval.

SJCM argued that upholding the Parish’s position pending trial would cause

irreparable harm because it would prevent the U.S. Army Corps of Engineers’

approval of Big Shake as a clay borrow source on the West Lakeshore Lake

Pontchartrain Levee Project or result in revocation of the approval; irreparably

damage the reputation of Big Shake developed over the last decade as a

commercial clay source for large industrial and public projects; and, destroy the

competitive advantage Big Shake enjoys due to its proximity to the West

Lakeshore Lake Pontchartrain Levee Project sites.

The trial court granted SJCM’s preliminary injunction request and enjoined

the Parish from requiring prior approval as a precondition to SJCM’s use of the

entirety of the 371-acre property as a borrow pit to excavate, sell, and deliver up to

9 million cubic yards of clay material for U.S. Army Corps of Engineers levee

projects. The court also enjoined the Parish from requiring prior approval for the

use of any necessary utilities or equipment, including electrical or water services,

in connection with the nonconforming use, which would prevent such use, e.g.,

refusing to issue permits for the utilities. Thus, the question before this Court is

whether the trial court was manifestly erroneous in the issuance of preliminary

injunction in question.

An injunction shall issue in cases where irreparable injury, loss, or damage

may otherwise result to the applicant, or in other cases specifically provided by

law. Richard v. Bourgeois, 19-494 (La. App. 5 Cir. 3/18/20); 293 So.3d 790, 793.

An injunction is a harsh, drastic, and extraordinary remedy, and should only issue

21-CA-416 17

where the mover is threatened with irreparable loss or injury without an adequate

remedy at law. Id. “Irreparable injury” means the moving party cannot be

adequately compensated in money damages for his injury or suffers injuries, which

cannot be measured by pecuniary standards. Zeringue v. St. James Parish School

Bd., 13-444 (La. App. 5 Cir. 11/19/13); 130 So.3d 356, 359.

After reviewing SJCM’s arguments, I summarize its position as follows: if it

is required to undergo the pre-approval process set forth in the Ordinance by the

Parish, it will miss the opportunity and its edge to obtain a contract with the U.S.

Army Corps of Engineers for the West Lakeshore Lake Pontchartrain Levee

Project, and sustain damage to its reputation as a result of this loss. The alleged

losses can be measured by pecuniary standards.9 Therefore, SJCM failed to prove

irreparable loss or injury without an adequate remedy.

For the foregoing reasons, I opine that the trial court erroneously granted

SJCM a preliminary injunction against the Parish. In addition to the majority

opinion’s finding that the actions enjoined within the preliminary injunction do not

maintain the status quo between the parties, I find that SJCM failed to prove any

irreparable injury or loss. On those two findings, I agree that the trial court’s

judgment should be reversed. However, I do not agree with analyzing subsections

(f) and (k) of the Ordinance. As mentioned in the majority opinion, the record

before us lacks any evidence to show that SJCM sought any permit approval from

the Parish for any use of the property at issue. Because the Parish has not yet had

an opportunity to render a zoning decision in this matter for us to review, I find

9
“Loss of business income or profits is a type of special damages.” Breton Sound Oyster
Company, LLC v. Stiel Insurance Co. of New Orleans, Inc., 17-955 (La. App. 4 Cir. 12/12/18); 299 So.3d
80, 89 n. 6, quoting, Nick Farone Music Ministry v. City of Bastrop, 50,066 (La. App. 2 Cir. 9/30/15); 179
So.3d 629, 631. Additionally, loss of business reputation is compensable through the award of damages;
therefore, it is not a harm properly addressed through injunctive relief. Two Canal St. Inv’rs, Inc. v. New
Orleans Bldg. Corp., 15-924 (La. App. 4 Cir. 4/20/16); 193 So.3d 278, 287-88, citing Ellis Const. Inc. v.
Vieux Carre Resort Properties, L.L.C., 05-1109 (La. App. 4 Cir. 6/7/06); 934 So.2d 206, 213.

21-CA-416 18

that the analyses and determinations regarding the applicability subsections (f) and

(k) of the Ordinance are improper at this juncture.

21-CA-416 19

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 9, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-416
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ALVIN TURNER, JR. (DISTRICT JUDGE)
ANDREW A. LEMMON (APPELLEE) VICTOR J. FRANCKIEWICZ, JR. PATRICK T. ISACKS (APPELLEE)
ROBERT J. STEFANI, JR. (APPELLEE) (APPELLANT)

MAILED
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