Hudson Cove lawyers up for July 20 appeal of plat denial to Council

David Cohn sits alone in preparation. Behind him sit (l-r) Jared “Burger” Beiriger, Deric Murphy, Nick Ferlito, unknown, and Ross Berthelot. (December when two denied subdivision plats were overturned by defunct Planning Appeals Board.

If Quality Engineering is the go to firm for subdivision developers the Cohn Law Firm is just as assuredly their preferred legal talent.  David Cohn will present the case for Hudson Cove to Ascension’s Parish Council on Thursday when the body will hear its first appeal of a residential subdivision preliminary plat denial since abolishing the three-man Appeals Board earlier this year.  Cohn successfully appealed three preliminary plats denied by the Planning Commission in 2016.

All three of the 2016 denials (Brookstone last February, Oakbourne and Camelia Cove in October) were overturned by the defunct Appeals Board.  Hudson Cove’s appeal, much like those in 2016, argues:

“The Commission’s denial of the Preliminary Plat was beyond the scope of its authority because their role in the plat approval process was administrative in nature where the Preliminary plat met all criteria mandated by the Parish of Ascension for approval of a Preliminary Plant (sic), including those related to traffic and drainage…”

Cohn’s legal interpretation resumes an argument of longstanding between the Planning Commission’s chair, a certain District 4 Parish Councilman, and a few of Ascension’s more engaged citizens. Parish Attorney O’Neil Parenton even requested an Attorney General Opinion last year to resolve the issue.

What the AG’s request could have said

Parenton asked the AG:

“What authority does the Ascension Parish Planning Commission have if it deny (sic) a plat seeking approval of a subdivision when the plat meets all Parish statutes, ordinances and regulations (including traffic and drainage requirements)?”

Parenton also inquired, “If such a plat is denied approval, what standard of scrutiny would a decision be subjected to in the Courts?”

In 2006 Parenton authored a two page advisory to the former Planning Commission which included; “the approval or disapproval of subdivision plats is considered to be legislative and therefore personal liability does not attach unless you, as a Commissioner, are shown to be arbitrary, capricious, or unreasonable in relationship to the health, safety and welfare of the public (La. R. S. 33:101.1).”  He has forgotten more law, apparently, than most of us will ever know and this happened to be one of the those areas that slipped his mind.  Maybe that’s why Cody Martin took Parenton’s place as the Planning Commission’s legal adviser.

Louisiana Revised Statute 33:101.1 reads “the act of approving or disapproving a subdivision plat is hereby declared a legislative function involving the exercise of legislative discretion by the planning commission.”  Attorney General Opinion #16-0011 interpreted the statute:

Pursuant to La. R.S. 33:101.1, the Ascension Parish Planning Commission has the authority to deny an application seeking approval of a subdivision when the plat meets all statutory and regulatory requirements. The standard of review that will be applied by a court on judicial review of an application which meets all statutory and regulatory requirements is strict scrutiny. (Andrews)

Op to Mr. O’Neil Parenton, Parish Attorney, Ascension Parish, Donaldsonville, LA Date Released: May 10, 2016

Which seemed clear but David Cohn is having none of it.

In a rambling appeal heavy with case-law he argues the “Commission was in effect legislating” without “legal or discretionary authority to deny” Hudson Cove.  In support of his obfuscation Cohn cites an early 1990s case, Homeowner/Contractor Consultant v. Ascension Parish Planning Commission wherein the Middle District (federal) Court deemed the commissioners’ (they were sued individually and collectively) consideration of preliminary plats to be an administrative, as opposed to a legislative, function.  Cohn makes the (not so) veiled threat of a law suit against the Commission writing “it had no discretion to deny the acceptance of the Preliminary Plat that meets parish requirements…In that regard, the Commissioners are in direct danger of losing the immunity provided by law.”

Deric Murphy holds aerial view of Brookstone for David Cohn

Cohn fails to mention that Homeowner/Consultants alleged denial of due process and equal protection ensured by federal law, which is why the Court addressed questions of immunity at all; and he omitted to write that Ascension’s Planning Commissioners prevailed in the case.  That’s right, the Court granted a Motion to Dismiss the case against former Commissioners Harvey Kling, James Alton, Kenneth R. Lambert, Clint P. King, Debbie Lacour, Brent Dix, Michael Watson, Glenn Bourgeouis and Brent Phillip.

Why?

Because “Qualified immunity is available for non-legislative and administrative acts of government officials…The defense of qualified immunity may be asserted even though the official violates a person’s civil rights, provided the official’s conduct was objectively reasonable.  The subjective intent of the public official is irrelevant.”

Cohn is nothing if not persistent, though.

He invokes the Supremacy Clause of the US Constitution (bringing out the big gun) to assert that “the federal law and its court decisions take priority over a state’s law and its court decisions” again citing Homeowner/Contractor.  Cohn ignores that pesky AG’s Opinion which states:

“As noted by the 5th Circuit (federal) Court of Appeals ‘review of municipal zoning is within the domain of the states, the business of their own legislatures, agencies, and judiciaries, and should seldom be the concern of federal courts…We do not envision a situation where a federal court would be reviewing a decision of the planning commission absent an allegation of violation of federal constitutional rights or other federal claims as was the case in Homeowner/Contractor.”

Cohn, accurately in this case, relies on Urban Housing of America v. City of Shreveport for the proposition that “Despite the sweeping language of R.S. 33:101.1, which would appear to give the city virtually boundless discretion to grant or deny an application, we will apply…strict scrutiny to the decision to deny a fully compliant application.”  Where the plat complied with municipal ordinances another court decision, Zachary Housing Partners, LLC v. City of Zachary, found the developer “is provided a use by right” meaning denial is subject to strict scrutiny by reviewing courts.  We concede that part of his argument.

He relies on Urban Housing’s language, “When applications are granted in similar situations and refused in others, the refusal to grant one may constitute a non-uniform application that is arbitrary and capricious.”  Which subdivision plat approved by the Commission is similarly situated to Hudson Cove?  Cohn does not say.

The facts in Urban Housing are clearly distinguishable to the case at bar, er, Hudson Cove’s appeal to the Parish Council.  The Urban Housing court wrote, “The fact that (the commission) and council approved the first two phases of (the development) and then denied the third, in the absence of a showing of any significant difference in the plans, creates a strong appearance of arbitrary and capricious.”  In both cases cited by David Cohn the planning commission had approved the development before the respective councils overturned, obverse to Hudson Cove’s appeal.

In both cases the courts sided with the developer but only after finding the council’s denial was “arbitrary and capricious” within the context of the strict scrutiny judicial review.  While Cohn’s reliance on State v. Webb to explain strict scrutiny review is misplaced, it considers the constitutionality of Revised Statute 14:95(E) which criminalizes the act of “Carrying Illegal Drugs While in Possession of a Firearm,” he’s not too far off the mark.

To deny a plat in compliance with parish ordinances the Planning Commission must state a compelling reason for its decision.  Cohn asserts that it “failed to articulate its compelling public interest in denying” Hudson Cove.  In a footnote he claims “Commissioner Furman (we think he means Ken Firmin) indicated in his comments that there are other places in the Parish to build subdivisions better than (Hudson Cove’s location)…On its face this attitude is patently discriminatory.”

Cohn further speculates that August 2016’s “500-1000 year storm event” is the drainage “standard being considered by the Planning Commission…The Commissioners who voted against this development did so without considering the evidence before them.”

What Commissioner Firmin actually said was “I drove out there.  It looks like a low area.  We have a lot of higher ground in this parish to build on.  A flood like we had in August is not even something to bring up.  But significant rain events would negatively impact neighboring property owners.”

Commissioner Wade Schxnaydre, who is not mentioned in Hudson Cove’s appeal, was the second vote to deny Hudson Cove’s preliminary plat (the vote was 2-1).

“My reason is the drainage.  I believe we’re going to succumb to even more issues,” Schexnaydre conceded Hudson Cove’s drainage impact study findings.  “But existing records are showing that we’d be pushing it too much.”

Are those concerns arbitrary and capricious?  Adjoining property owners to Hudson Cove who appeared at the April Planning Commission meeting certainly did not think so.  What about their duly elected representatives who will make the final decision on July 6?