Singh Signature Stores, Inc. v. Lafayette Parish Council and Lafayette City Parish Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-464

SINGH SIGNATURE STORES, INC.
VERSUS

LAFAYETTE PARISH COUNCIL AND LAFAYETTE CITY PARISH
CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20231083
HONORABLE MICHELE S. BILLEAUD, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Candyce G. Perret, and Gary J. Ortego, Judges.

REVERSED; RENDERED;
AND REMANDED.

Emile Joseph, Jr.

Robert A. Robertson

Allen & Gooch, A Law Corporation

P.O. Box 81129

Lafayette, LA 70598-1129

(337) 291-1310

COUNSEL FOR PLAINTIFF/APPELLANT:
Singh Signature Stores, Inc.

Patrick S. Ottinger

Lafayette City-Parish Attorney

P.O. Box 4017-C

Lafayette, LA 70502

(337) 291-8015

COUNSEL FOR DEFENDANTS/APPELLEES:
Parish of Lafayette
Lafayette City-Parish Consolidated Government

Daniel J. Gauthier

Becker & Hebert, LLC

201 Rue Beauregard

Lafayette, LA 70508

(337) 233-1987

COUNSEL FOR DEFENDANTS/APPELLEES:
Parish of Lafayette
Lafayette City-Parish Consolidated Government

KYZAR, Judge.

The plaintiff, Singh Signature Stores, Inc., appeals from the district court’s
affirmation of a decision by the Lafayette Parish Council, which granted an appeal
and reversed the Lafayette Parish Planning Commission’s grant of preliminary plat
approval for its proposed subdivision of property. For the following reasons, we
reverse, render, and remand.

FACTS AND PROCEDURAL HISTORY

Singh Signature Stores, Inc. (Plaintiff), the owner and operator of Grab-N-
Geaux convenience stores in south Louisiana, purchased property in Lafayette
Parish (the Parish) with the intention of building and operating a convenience store
with fuel sales (store), The property, located at the intersection of Fortune and
Chemin Metairie Roads, is situated in an unincorporated area of the Parish, between
the municipalities of Lafayette and Youngsville. As the area where the property is
located is unincorporated, it is not zoned.

Prior to purchasing the property, Plaintiff submitted a pre-application sketch
plan of its proposed development to the Lafayette City-Parish Consolidated
Government’s (LCG’s) Community Development and Planning Department (DPD)
to determine whether its plat conformed to the requirements of the Lafayette
Development Code (LDC).' After revising its plat accordingly, Plaintiff purchased
the property. It then filed an application for minor plat, which requested that an
American with Disabilities Act (ADA) requirement be waived with regard to
sidewalks. Following a November 8, 2022 public hearing before a Hearing

Examiner, the minor plat and requested waiver were approved subject to compliance

' Plaintiff's plat application is entitled, “Mrs. Althe Duhon LeBlanc Partition, A-1.”

with the LDC as well as thirteen conditions, two plat revisions, and nine
comments/suggestions. The conditions set by the Department of Public Works, the
Department of Traffic, Road, and Bridges, and the DPD included issues pertaining
to construction, drainage, traffic, and the right-of-way and setbacks required for a
proposed roundabout at the intersection of Fortune and Chemin Metairie Roads.

The matter was then set for approval by the Lafayette Parish Planning
Commission (Commission) on the consent agenda of its December 12, 2022 hearing.
However, due to opposition against the approval, the Commission removed the
matter from its consent agenda and set it for public hearing during its January 9,
2023 meeting. Although an audio recording of this meeting is included in the
appellate record, it is difficult at times to identify the speakers.

During the meeting, it was noted by Sharon Wagner, a DPD staff member,
that Plaintiff's proposed convenience store was an allowed use as its property was
located in an unincorporated area of the Parish. She recommended approval of the
plat application subject to the same conditions, plat revisions, and
suggestions/comments approved by the Hearing Examiner. It was stated several
times by certain commissioners that the Commission could not deny Plaintiff's plat
application based on its intended use of the property as a store was an allowed use
in the unincorporated area of the Parish. They explained that the purpose of a
preliminary plat is to establish the property’s boundaries. It was also noted that
Plaintiff had withdrawn its requested waiver pertaining to ADA-compliant
sidewalks.

The Commission heard opposition from seven adjacent or nearby landowners,
who objected to the presence of a store in their neighborhood and the effect it would

have on drainage, traffic, environmental, and safety issues in their community. The

Commission eventually granted preliminary plat approval subject to the thirteen
conditions, two plat revisions, and nine comments/suggestions approved by the
Hearing Examiner.

On December 13, 2022, Sean McDaniel, an adjacent landowner, applied for
an appeal of the Commission’s decision for the following reasons: “Challenge of
Obsolete Standards for Unincorporated Lafayette Parish[;] Drainage/Flood Issues[;]
and] Environmental/Health Concerns[.]” Thereafter, the appeal was set for hearing
on February 15, 2023, before the Lafayette Parish Council (Parish Council). A video
of that meeting is included in the appellate record.

At the start of the hearing, Council Member Kevin Naquin asked Mary
Sliman, the DPD director, if Plaintiff's proposed store was an allowed use and if
LCG would face liability for denying preliminary plat approval for an LDC-
compliant plat. Without addressing the liability issue, Director Sliman stated that a
store is an allowed use as Plaintiff's property is located in an unincorporated area of
the Parish, which is not zoned. Thus, as long as the convenience store complies with
the LDC land-use requirements of landscaping, fencing, and buffering, it is an
allowed use. Director Sliman explained that the platting process creates a legal lot
of record through the establishment of the subject property’s boundaries and that a
legal lot of record is required before any type of construction will be approved. She
said that a final plat is only approved if the developer satisfies all of the conditions
and plat revisions listed in the plat within two years of receiving preliminary plat
approval.

Mr. McDaniel stated that despite the lack of regulations in the unincorporated
areas of the Parish, the approval of a proposed development should be based on good

judgment and common sense rather than the fact that the property is not zoned. In

this instance, he opined, approval of Plaintiff's proposed store was both a failure of
sound judgment and inconsistent with smart development practices based on its
proximity to the surrounding homes. Mr. McDaniel claimed that the location would
place an unnecessary burden on him and his elderly neighbors as there is no fence
large enough to shield them from the light and noise generated by a store and because
the nearest fuel pump would be located twenty-five feet from his neighbor’s house.
He further claimed that the store would be the beginning of the end for his
neighborhood as he and his neighbors would probably have to move. Finally, he
argued that when he purchased his home twenty-three years ago, he did so with the
expectation that his neighborhood would remain residential, not that a store would
be located across from his home.

Plaintiff's counsel, Emile Joseph, Jr., and its engineer, Brooke Smith, spoke
in opposition to the appeal. After outlining the procedural history of Plaintiff's plat
application, Mr. Joseph stated that there is no Louisiana law authorizing the Parish
Council to grant Mr. McDaniel’s appeal. He reiterated that a plat application is the
beginning of the process and that all concerns raised by the public regarding traffic,
flooding, and environmental issues would be addressed in the development stage.
Ms. Smith echoed that the platting process is only the first step in the development
process and that all concerns raised by the public would be addressed after Plaintiff's
plat was approved. She further stated that Plaintiff was seeking no waivers under the
LDC, that it accepted all conditions set by the Hearing Examiner and the Planning
Commission, and that it fully intended to comply with the LDC.

During public comment, twelve residents spoke in support of the appeal based
on concerns pertaining to Plaintiff's intended use of the property for a store. These

included increased traffic, flooding, drainage, benzene exposure, groundwater

contamination, and decreased property values. Concerns were also voiced regarding
the effect the store would have on their quiet, closeknit, crime-free neighborhood as
it would be the only commercial establishment in the neighborhood. They worried
about the light and noise generated by the store and the health and safety of elderly,
disabled neighbors who could not afford to move. They condemned the proposed
store’s location due to the fact that nine gas stations are located within a two-mile
radius of Plaintiff's property. Many argued that they purchased their homes in the
expectation that their neighborhood would remain residential. One resident
questioned the effect that large supply trucks would have on the area’s small two-
lane roads, and another worried about the effect that the proposed roundabout would
have on nearby landowners. Mr. McDaniel and other residents were also concerned
that the store would add to the heavy traffic the community already experienced on
the roads and intersection. The minutes of the meeting indicate that nine additional
residents were present in support of the appeal, ninety-six residents had called in to
support the appea!, and one resident called in to oppose the appeal.

During discussion, Josh Carlson, the Chair of the Parish Council, observed
that Plaintiff's plat application complied with all LDC regulations. However, he
noted that pursuant to LDC § 89-55(b){1), the Commission should not have granted
approval without first considering the store’s impact on existing landowners and its
possible environmental impact on the community. In his opinion, the Commission
should be authorized to request an environmental impact study concerning the
environmental threats a development poses to neighboring properties. However,
Director Sliman stated that developers intending to construct stores are not required
by the LDC to perform environmental impact studies regarding the effect their stores

will have on nearby properties.

Mr. Carlson stated that he was against Plaintiff's proposed store as it would
change the look and feel of the existing neighborhood. He pointed out that approval
is only granted if a preliminary plat complies with the LDC and “‘is consistent with
the Comprehensive Plan.” LDC § 89-57(f)(1). It was his opinion that Plaintiff's plat

application was inconsistent with LCG’s Comprehensive Plan (the plan) and should

be denied.’

In finding it inconsistent, Mr. Carlson quoted from the vision statement of the
plan’s Second Element, pertaining to community character:

As it pertains to population, Lafayette’s rich Cajun and Creole heritage,

its creative scene and culture of innovation, and authentic “joie de

vivre” combine to create a unique and attractive place. Combine these

aspects with the built environment and that is the focus of the

Community Character element — how the community looks and fees.

This is of critical importance and is defined by how we protect,

maintain, and create desirable neighborhoods, how we encourage

compatible and diverse land uses, how we provide for ease of mobility,

and how we protect cultural and natural resources.

PlanLafayette, p. xvii (June 10, 2014).

Accordingly, he opined that the Commission, before approving a preliminary
plat, should protect existing neighborhoods by considering the look and feel of the
community. He emphasized the importance of this protection based on the fourth
goal of the plan’s Third Element, pertaining to housing and neighborhoods, which
is to “[p]rotect and revitalize neighborhoods and assets.” /d. at xvii.

Mr. Carlson pointed out that Plaintiff's property is not located in a named
subdivision, that the nearest commercial establishment is located half a mile away

on Verot School Road, and that both sides of Fortune and Chemin Metairie Roads

are lined with residences. He opined that the property rights of these landowners

> The Comprehensive Plan is entitled “PlanLafayette.”

would not be protected if Plaintiff's development proceeded. Based on the Parish’s
expected growth, Mr. Carlson stressed the importance of protecting the property
rights of homeowners that have lived in the neighborhood for ten to fifty years. He
noted that he would feel different if Plaintiff had purchased an empty field rather
than the subject lot and existing house, which Plaintiff demolished. Thus, it was his
opinion that the existing homeowners’ property rights were not protected by the
LDC.

Council Member Bryan Tabor questioned the status of the roundabout and
was told by Director Sliman that the roundabout was in the design stage but that the
DPD had not contacted the adjacent landowners as the roundabout’s right-of-way
limits had not yet been determined. Based on these facts, Mr. Tabor felt that the
Commission was “putting the cart before the horse” in granting preliminary plat
approval to Plaintiff. He further enquired about the source of water for those homes
near Plaintiff's property and was told that while some are on city water others have
wells. Finally, Mr. Tabor questioned the circumstances surrounding Plaintiffs
purchase of the property. Mr. McDaniel informed him that he and his neighbors only
learned that the property had been purchased by Plaintiff several months after the
fact.

Council Member John Guilbeau questioned whether the Commission
considered the plan before approving the preliminary plat. He further stated that he
wished to preserve and protect the neighborhood in question.

When discussion had concluded, Mr. Guilbeau moved to grant the appeal to
reverse the preliminary plat approval, which was seconded by Mr. Tabor based on

the water well issue, the roundabout, and the secretive manner in which Plaintiff

acquired the property. The Parish Council then voted four to one to disapprove the
Commission’s preliminary plat approval.

Following this decision, Plaintiff filed an appeal with the Fifteenth Judicial
District Court as well as a petition seeking declaratory judgment, injunctive relief,
mandamus relief, and damages, naming the Parish Council and LCG as defendants.
Plaintiff alleged that as its minor plat satisfied all of the LDC’s requirements, it was
an application by right; thus, the Parish Council acted arbitrarily, capriciously, and
unreasonably in denying its application, which decision amounted to an
unconstitutional taking. Thus, it sought a declaratory judgment and a mandatory
injunction ordering that the Parish Council approve its minor plat. Plaintiff further
sought damages as a result of the Parish Council’s arbitrary and capricious de facto
zoning of its property as residential despite its location in an unincorporated area of
Lafayette Parish. It further sought damages based on the Parish Council’s violation
of its due process and equal protection rights, which amounted to an unconstitutional
taking without just compensation.

Pursuant to an April 7, 2023 order, the district court scheduled a hearing on
Plaintiff's discovery motion and ordered the bifurcation of its appeal from its other
claims, with the remaining claims held in abeyance pending the outcome of its
appeal.’ Thereafter, Plaintiff supplemented and amended its original appeal and
petition by substituting the Parish of Lafayette as defendant in place of the Parish

Council and by requesting that its appeal be granted.” It again supplemented and
8 Pp

Although the record contains a memorandum in support of Plaintiffs motion to perform
discovery, the actual discovery motion is not included in the record.

; Although paragraph “1” of the first supplemental and amended petition states that Plaintiff
was removing the Parish Council as defendant and replacing it with the Parish of Lafayette,
paragraph “1.” of the original petition, as supplemented and amended, lists the Parish of Lafayette

amended its appeal and petition two days later, seeking a judgment declaring that it
was not required to obtain preliminary plat approval before seeking a building permit
as its property had already been platted pursuant to an act of exchange recorded on
June 25, 1970.

Following a hearing on Plaintiff's motion to perform discovery, the district
court rendered a July 31, 2023 judgment, granting in part and denying in part its
motion. The district court allowed discovery in relation to Plaintiff's claims for
declaratory judgment, injunctive and mandamus relief, and damages but denied
discovery in relation to its appeal. Thereafter, the matter proceeded to a hearing on
Plaintiff's appeal.

At the start of the hearing, Plaintiff orally requested that the district court
reconsider its refusal to allow the introduction of evidence not considered by the
Parish Council, which was denied. Following argument on Plaintiff's appeal, the
district court orally denied the appeal, stating:

Well, after having reviewed the entire record, I find that the record

shows the parish council considered all of the factors required by the

Lafayette Development Code, including the comprehensive plan, and

after doing that the parish council denied the plat approval. I find there’s

no evidence that this decision was arbitrary and capricious; therefore, I

uphold the findings of the Lafayette Parish Council.

A written judgment was rendered on May 21, 2024, denying Plaintiff's motion

to reconsider its previous discovery motion and affirming the Parish Council’s denial

of its preliminary plat application. It is from this judgment that Plaintiff appeals.”

as defendant in place of both the Parish Council and LCG. However, based on the wording of
paragraph “I,” we find that Plaintiff did not remove LCG as a defendant.

° Plaintiff also filed an application for supervisory writs to this court, which was not
considered. Singh Signature Stores, Inc. v. Lafayette Par. Council, 24-291 (La.App. 3 Cir. 7/8/24)
(unpublished writ).

On appeal, Plaintiff raises the following three assignments of error:

I. The trial court committed legal error, abused its discretion and/or
was manifestly erroneous by refusing to allow Singh to introduce
evidence in support of its claim that LCG was arbitrary and
capricious, abused it authority and/or violated Singh’s due
process rights.

Il. The trial court committed legal error, abused its discretion and/or
was manifestly erroneous when it refusing [sic] to allow Singh
to profer [sic] the testimony of Mary Sliman, Bonnie Anderson
and Neil LeBouef.

III. The trial court abused its discretion, committed legal error and/or
was manifestly erroneous when ruling LCG was not arbitrary,
capricious, did not abuse its authority or violate Singh’s due
process rights when overturning the Hearing Examiner and
Planning Commission’s ruling and denying Singh’s preliminary
minor plat approval.
OPINION
The authority to regulate land use is a power granted to local governmental
subdivisions by La.Const. art. 6, § 17, which includes the authority to adopt land-
use regulations, to create commissions to implement those regulations, and to review
any decisions made by the commissions. As the implementor of land-use
regulations, a planning commission is tasked with the responsibility of establishing
and adopting a master plan, which is “a statement of public policy for the physical
development of a parish or municipality[.]” La.R.S. 33:106(A); La.R.S. 33:101(1).
A planning commission is further responsible for the adoption of regulations
governing the subdivision of land within its jurisdiction. La.R.S. 33:112(A). As
defined by La.R.S. 33:101(5)(a), subdivision is:
[T]he division of a lot, tract, or parcel of land into two or more lots,
plats, sites or other divisions of land for the purpose, whether immediate
or future, of sale or of building development, and, with regard to
parishes, for the purpose of sale or of building development for
purposes other than agricultural. It includes resubdivision and, when

appropriate to the context, relates to the process of subdividing or to the
land or territory subdivided.

10

“(T]he act of approving or disapproving a subdivision plat” is a “legislative
function involving the exercise of legislative discretion by the planning commission,
based upon data presented to it[.]” La.R.S. 33:101.1. Such an act is further ’subject
to judicial review on the grounds of abuse of discretion, unreasonable exercise of
police powers, an excessive use of the power herein granted, or denial of the right of
due process.” Jd.

Although the first two assignments of error concern evidentiary rulings by the
district court, we pretermit any discussion on those issues in light of our disposition
of Plaintiff's third assignment of error. Accordingly, we will proceed to that
assignment. As Plaintiff raises both procedural and substantive issues in that
assignment, we will address the procedural issue first.

Validity of the Appeal to the Parish Council

Plaintiff first argues that the district court acted unreasonably in failing to find
that no valid appeal was taken from the Hearing Examiner’s decision and by failing
to find that the Commission’s decision granting preliminary plat approval was a final
decision not subject to appeal. Plaintiff argues that absent an appeal by a person with
standing, a Hearing Examiner’s decision, as approved by the Commission, “is final
for purposes for issuance of a building permit.” It further argues that even if the
Hearing Examiner’s decision had been appealed, the decision by the Commission
from that appeal is still a final judgment and not subject to review by the Parish
Council. We disagree.

The Parish Council, as the governing authority for the Parish, is authorized by
both the Louisiana Constitution and LCG’s Home Rule Charter to review
Commission decisions. La.Const. art. 6, § 17; LCG Home Rule Charter § 4-10(H)

(January 2020). Moreover, the appellate procedure applicable to Commission

1]

decisions “applies to any appeal of any Planning and Zoning Commission action
concerning the approval or denial of a proposed subdivision.” LDC § 89-69(a)(1).
The procedure further sets forth the time for filing an appeal “from the approval,
denial or other final action of the appropriate Planning and Zoning Commission with
respect to an application[.]” LDC § 89-69(b)(1)(a). Accordingly, we find that any
decision by the Commission approving a subdivision application is appealable to the
Parish Council, including one that approves a Hearing Examiner decision or is
rendered on appeal from such a decision.

While LCG asserts that the Commission’s transfer of Plaintiff's plat
application from the consent agenda to the regular agenda automatically converted
it from a minor plat to a preliminary plat, a plain reading of the LDC procedures
applicable to either plat does not support this claim. LDC §§ 89-57, 89-60(e).
Nonetheless, we recognize that during the “Development Review” section of the
January 9 meeting, the Commission granted Plaintiff preliminary plat approval
rather than “approval of the Hearing Examiner action[][,]” as it did for the items
considered just prior to Plaintiff's application. However, we find that the outcome
would remain the same no matter how Plaintiff's plat is classified.

We find that the Commission decision granting Plaintiff preliminary plat
approval was appealable to the Parish Council as it was an action approving a
proposed subdivision. The same would hold true for a decision rendered from an
appeal of a Hearing Examiner decision, as it would still be an action approving or
denying a proposed subdivision. Accordingly, we find no legal error in the district
court’s failure to find that the Commission’s decision was final and not subject to

appeal to the Parish Council.

12

Appeal of Parish Council Decision

Plaintiff next asserts that the Parish Council acted arbitrarily, capriciously,
unreasonably, and in violation of its due process rights in denying its use by right to
construct a store in an unincorporated area of the Parish. It further argues that the
Parish Council acted unreasonably in denying its plat application because it failed to
comply with the plan and because the Parish Council wanted to preserve the subject
neighborhood as residential. Finally, Plaintiff argues that the Parish Council acted
unreasonably by expanding the issues considered on appeal beyond those specified
by Mr. McDaniel.

The subdivision processes implemented by the LDC are intended “to assure
the orderly development of property and reduction of blight in existing
neighborhoods within the City of Lafayette and unincorporated Lafayette Parish.”
LDC § 89-55(b)(1). However, there exists no “inherent right to subdivide property
or to create building sites except as consistent with the public health, safety and
welfare of the entire community.” /d. The review of and a decision approving a plat
application “shall include an evaluation of all aspects that might relate [to] this
decision, including but not limited to: infrastructure capacity or impact, current
growth management policies, traffic congestion, and environmental impacts.” /d.
Accordingly, all plat applications are referred for review and comment by the
appropriate departments and agencies, including LCG’s Departments of Public
Works and Traffic, Road, and Bridges; the City of Lafayette’s Lafayette Utilities
System and Fire Department; the applicable private or public utilities; the DPD; and
“Talny other agencies or departments who may provide relevant comments about the

proposed subdivision.” LDC §§ 89-57(e)(1), 89-60(e)(1).

I3

A subdivision plat is obtained through either an application for preliminary
plat or via an application for minor plat. “Preliminary plat approval is required for
all unplatted property that has not been approved by the appropriate Planning and
Zoning Commission or before a building permit can be obtained,”® LDC § 89-57{a).
Under certain conditions, expedited approval of a minor plat may be obtained
administratively from a Hearing Examiner. La.R.S. 33:113.1; LDC § 89-60(e){6).
Approval of either type of plat application will be granted if it “complies with all
applicable requirements of” the LDC and “is consistent with the Comprehensive
Plan.” LDC §§ 89-57(f)(1), 89-60(f).

Although the platting process is only used to establish a lot’s boundaries, the
Parish Council granted Mr. McDaniel’s appeal based solely on Plaintiff's intended
construction and operation of a store on its property. This was despite the fact that a
store is an allowed use in the unincorporated area of the Parish as long as Plaintiff
satisfies the buffer and building standards found in Article 3 of the LDC. LDC § 89-
6(a).” Thus, we find that Plaintiff was seeking a use by right as a store is an allowed
use and its plat application was approved subject to the modifications imposed by
the Commission. That Plaintiff was seeking a use by right was admitted to by
Defendants’ counsel during oral argument before this court.

The jurisprudence pertaining to a “use by right” was set forth in Dorsey

Development DG, L.L.C. v. Tangipahoa Parish Council-President Government, 24-

* The procedure for obtaining a preliminary plat application is found in § 89-57, which is
located in “Article 4. Procedures” of the LDC, under “Division 4. Subdivision Processes[.]}”

; Although § 89-6(a) states under District “A” Agricultural that “/bjuffer and building
design requirements of Article 4 apply if the area is not zoned[,)” we note the LDC’s development
standards are found in Article 3 rather than Article 4.

14

271, pp. 17-18 (La.App. 1 Cir. 10/3/24), So.3d ___, __ (footnotes omitted), as
follows:

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 Commission,
2023-1051, p. 14, n. 8 (La.App. 1 Cir. 5/31/24), [391] So.3d [690],
[701]. In a situation when a landowner seeks a use by right, the use by
right should be presumptively valid and approved. /d.

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. 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 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.

After reviewing the Parish Council’s decision pursuant to the strict scrutiny
standard of review, we find that it acted unreasonably in denying Plaintiffs use by
right based on its finding that the plat application failed to comply with the plan.
Although Mr. Carlson admitted that the plat application complied with the LDC, he
and Mr. Guilbeau both concluded that the Commission failed to consider the plan
before granting preliminary plat approval.

Lafayette Development Code Section 89-1 states that the LDC implements

LCG’s plan by “[rJegulating subdivision plats and development in the City of

15

Lafayette and the unincorporated areas of” the Parish and by “[e]stablishing zoning
regulations in the City of Lafayette.” Specifically, the LDC is found to be consistent
with the plan by “[t]he Lafayette Parish Planning Commissions, the Lafayette City
Planning and Zoning Commissions, the Lafayette City Council and the Lafayette
Parish Council[.]” LDC § 89-4(a). Moreover, the LDC’s own rules of interpretation
provide that it “establishes the minimum requirements to promote the public safety,
health, convenience, comfort, morals, prosperity, and general welfare.” LDC § 89-
150(a)(1). Therefore, a plat that complies with the applicable requirements of the
LDC is by that very fact consistent with the plan and presumed to satisfy the
minimum requirements pertaining to “public safety, health, convenience, comfort,
morals, prosperity, and general welfare.” /d. As it is undisputed that Plaintiff's plat
application complied with the LDC, the Parish Council acted unreasonably in
finding that it did not comply with the plan.

The Parish Council further acted unreasonably by effectively zoning
Plaintiff's property as residential despite its location in an unincorporated area of the
Parish. The only property subject to zoning regulations is that located in the City of
Lafayette, with the unincorporated areas of the Parish only subject to the LDC’s
regulations pertaining to subdivision plats and development. LDC § 89-1.
Accordingly, we find that the neighborhood where Plaintiff's property is located is
not subject to zoning absent annexation by the City of Lafayette through either
petition and election or by ordinance. La.R.S. 33:151; 33:171. Thus, the Parish
Council acted in contravention of the LDC and in violation of Plaintiff's due process
rights.

We point out that the facts at issue differ from those in two recent decisions

wherein we upheld a governmental subdivision’s denial of preliminary plat

16

approval. In Glomax, LLC v. Lafayette Consolidated Government, 24-183 (La.App.
3 Cir. 11/27/24), __ So.3d __, the plaintiff was not seeking a use by right as it
requested a waiver of the LDC’s prohibition against double-fronted lots. Thus, the
city council’s denial was not subject to strict scrutiny. This court held that the denial
of the plat application was valid because there was a legitimate public concern that
a double-fronted lot would cause an increase in traffic.

In B&A Holdings, LLC v. City of Natchitoches, 23-620 (La.App. 3 Cir.
3/6/24), 382 So.3d 471, the property at issue was located in a flood zone, and there
was public opposition to development of the property based on the periodic, serious
flooding experienced in the area. Although normally required, the plaintiff's
application to subdivide its property failed to indicate sewer, water line, and drainage
ditch locations or include proposed plans for drainage and sewage disposal. As
flooding was a legitimate public concern, this court affirmed the city council’s
denial, finding that it was based on a legitimate public concern that the area’s
existing flooding problems would be exacerbated by any proposed construction on
the subdivided property.

Furthermore, while we are cognizant of the concerns that were raised in
opposition to Plaintiff's store, we note that its plat was approved subject to
conditions addressing the flood and drainage issues, which issues will be further
addressed during the development stage of this project. It is further evident that LCG
is already aware of the heavy traffic experienced by this community as evidenced by
the roundabout being built at the intersection of Fortune and Chemin Metairie Roads.
Furthermore, although residents complained that the proposed store would decrease
property values and increase crime, these complaints are mere speculation and

unsupported by evidence. Regarding claims that the store would environmentally

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impact the neighborhood, we note that no applicant seeking a minor or preliminary
plat with the intention of building a store is required by the LDC to perform an
environmental impact study prior approval being granted. By singling Plaintiff out
on this issue, we find that there has been a non-uniform application of LCG’s land
use and development regulations by the Parish Council. La.Const. art. 6, § 17; See
also D’Argent Props., LLC v. City of Shreveport, 44-457 (La.App. 2 Cir. 6/24/09),
15 $0.3d 334, writ denied, 09-1726 (La. 11/6/09), 21 So.3d 308.

As the Parish Council has failed to overcome the presumption that Plaintiff's
use by right was valid and should be approved, we find that it acted arbitrarily and
capriciously and in violation of Plaintiff's due process rights by denying its plat
application. Based on these findings, we need not address whether the Parish Council
acted unreasonably by expanding the issues considered on appeal.

DECREE

For the foregoing reasons, the district court judgment, affirming the decision
of the Parish Council granting the appeal and denying Singh Signature Stores, Inc.’s
plat application, is reversed. We hereby render judgment reinstating the decision of
the Lafayette Parish Planning Commission, granting preliminary plat approval to
Singh Signature Stores, Inc. The matter is remanded to the district court for further
proceedings on Singh Signature Stores, Inc.’s remaining claims. Costs of the appeal
are assessed to the defendants, Parish of Lafayette and Lafayette City-Parish
Consolidated Government, in the amount of $6,073.46. La.R.S. 13:5112(A).

REVERSED; RENDERED; AND REMANDED.

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