Lawsuit: SOWL (Glynn Brock) vs. St. Tammany Parish Council

22ND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA

SAVE OUR WETLANDS (SOWL) and GLYNN BROCK

VERSUS

THE ST. TAMMANY PARISH COUNCIL

PETITION FOR JUDICIAL REVIEW, DECLARATORY JUDGMENT & WRIT OF MANDAMUS

1. Made defendant herein is the St. Tammany Parish Council (the “Council”), the local governing body with regard to zoning and land use matters, including but not limited to approval of proposed Lakeshore Estates and Villages Planned Unit Developments adjacent to Lake Pontchartrain Pirate’s Harbor.

2. On May 4, 2004, Tammany Holding Corp. received approval from the St. Tammany Parish Planning and Zoning Commission to amend the conditions of the Lakeshore Estates and Lakeshore Villages Planned Unit Developments (Exhibit_____). Timely letters of appeal were filed by plaintiffs and approximately 50 others who live at Pirate’s Harbor, Slidell, La., on the East Diversion Canal adjacent to the proposed project, and who are most greatly aggrieved by project in dispute. On May 12, 2004 SOWL filed an appeal with the “Council” (Exhibit___). On June 3, 2004 the Council rubber stamped the P & Z’s May, 2004 approval. It is from this June 3, 2004 Council decision that the petitioners are aggrieved and seeking judicial review and relief under the provisions of La. R.S. 33:4780.40 and La. R.S. 33:4727(E).

3. Petitioner SOWL, consisting of over 1,200 members, is a not for profit Louisiana corporation, whose dedicated purpose is to protect and preserve the wetlands of Louisiana (Exhibit_____) and is comprised of some members living at Lake Pontchartrain Pirate’s Harbor on the East Diversion Canal, Slidell, La., adjacent to the proposed project. The approval given to the development is contrary to the laws of this Parish and State of La. and has aggrieved Petitioners, including named plaintiffs GLYNN BROCK and SAVE OUR WETLANDS (SOWL).

4. The Council’s decision to grant approval of the proposed development is contrary to the provisions of its own ordinances and constitutes an abuse of discretion and the unreasonable exercise of its police powers.

5. Before approving a subdivision at any stage, Planning and Zoning, and necessarily the Council when reviewing a decision of Planning and Zoning, must “review whether subdivision plans meet minimum requirements, and shall consider whether the plans ensure and conform to the best interest of the public health, safety, and welfare.” St. Tammany, La., Subdivision Regulation 40-038.0 (11/21/91).

   NON-COMPLIANCE WITH MINIMUM REQUIREMENTS FOR APPROVAL

6. The development plans as presented by the developer, and approved by the Council, did not meet the minimum requirements for approval for the following reasons:
   1. The plans do not indicate the phases of the development as required by St. Tammany, La. Subdivision Regulation 40-50.0(m). The applicant admits Lakeshore Estates and Lakeshore Village will be developed over the next 25 years but refuses to propose the phases of the development (Exhibit___).

   2. Because this is a phased project, the developer is compelled to dedicate and include all required greenspace in the first phase of the project. St. Tammany, La. Subdivision Regulation 40-39.0(3). Since the phases of the project have not been demonstrated, this requirement has not and cannot be met.

   3. The location of all the proposed and/or existing servitudes has not been properly indicated as required by St. Tammany, La., Subdivision Regulation 40-50.0(o).

   4. FEMA Flood Map Firm Panel Number is missing from the plat as required by St. Tammany, La. Subdivision Regulation 40-50.0(2)(i).

   5. As required by St. Tammany, La. Subdivision Regulation 40-50.04 the developer has not submitted a notarized letter “stating that all utility companies, mainly those providing sewer, water, telephone and electric service to the new subdivision development, have been contacted regarding the need for the establishment of any utility easements, servitudes or rights.”

   6. No proper Traffic Impact Analysis (“TIA”) has been submitted with the developer’s application for subdivision approval as required by St. Tammany, La. Subdivision Regulation 40-042.30 and 40-042.80.

   7. Section 40-50.0(g) of the St. Tammany Parish Subdivision Regulations requires that an Environmental Assessment Data Form (“EA”) be submitted prior to receiving tentative approval. The EA submitted in this case is replete with erroneous and fallacious statements. See SOWL’s May 12, 2004 appeal submitted to Council paragraph 9 and 10 (Exhibits 4-7 and 9-21).

   8. The EA hides the tremendous amount of dredging this project entails in the widening of the East Diversion Canal and the erosion flooding, and slippage it will cause to Petitioner’s homes and camps. (Exhibit___)

   9. The EA submitted in this case was prepared and signed by an agent of St. Tammany Holding Corp., the developer of the project, which removes his ability to remain un-bias and impartial in his completion of the EA. Accordingly, the EA submitted with this proposed development should not be considered because a non-neutral party who clearly had a conflict of interest completed it.

   10. Section 40-037.0(L) of the St. Tammany Parish Subdivision Regulations requires: “A drainage system shall be provided and designed in accordance with the best modern engineering practices so as to adequately contain and carry off, to the point of ultimate disposal, such runoff as can be expected in the area, taking into consideration the number and type of buildings or structures to be erected in the subdivision and certifying that the runoff will not be increased by the proposed development” Id. No such drainage system has been provided and designed or produced with the application for tentative approval.

   NON-COMPLIANCE WITH NEW DIRECTIONS 2025

7. The citizens of St. Tammany Parish have expended hundreds of thousands of dollars and incalculable other resources on the development of the comprehensive land use plan named New Directions 2025 (“ND 2025”). The Council approved this comprehensive land use plan in December of 2003, giving it the force of law. In addition, the approval of ND 2025 y the Council is a clear statement by the Council that this comprehensive land use plan is in the best interest of this Parish. Accordingly, under Section 40-038.0 of the St. Tammany Parish Subdivision Regulations, the Council is under an obligation to follow the guidelines promulgated in ND 2025.

8. The development plans as presented by the developer, and approved by the Council, do not comply with the provisions of ND 2025 for the following reasons:
   1. Section III(c)(6)(a) of ND 2025 provides that: “The Parish should prohibit the deterioration of stream water quality from development or land use activities, including but not limited to, turbidity and silting from timbering, other agricultural activities, land clearing or development.” This project will include excavation for retention ponds/lagoons and canals; residential and commercial lots and associated infrastructure such as roads, utilities, a drainage pump station, etc.; the widening of the East Diversion Canal; levee maintenance/construction and/or relocation; and the dredging of a navigational channel in Lake Pontchartrain. In particular the project will involve the dredging or filling of 650 acres of valuable wetlands. 34 1/2 acres of essential fish habitat used by red drum and penaeid shrimp will be altered or destroyed. This whole project coupled with the destruction of 650 acres of wetlands and the widening of the East Diversion Canal will increase sedimentation; and in turn, will degrade the water quality of those waterways, and ultimately the recreational activities supported by them, clearly a violation of ND 2025.

   2. Section III (7)(c), amongst other things states that: “to protect existing habitat areas sooner than later, the Parish should build partnerships to accelerate the protection of critical habitat areas…” It goes on to state: “Corollary benefits of land conservation and habitat protection include (among others): flood protection, stream water quality; hunting, fishing, bird watching, and other ‘nature based’ recreational activities; and the preservation of St. Tammany’s pre-eminent biodiversity (foremost in Louisiana)…” (emphasis added). This development will destroy 650 acres of wetlands. 34 1/2 acres of essential fish habitat used by red drum and penaeid shrimp will be altered or destroyed. The destruction of this dwindling critical habitat clearly contravenes the conservation principles encompassed in ND 2025.

   3. A substantial amount of the acreage slated for development, approximately 650 acres, is located in wetlands. The destruction of these wetlands and the introduction of tons of fill and concrete will inhibit the area’s sponge like ability to absorb rain and run-off water from the area. This will naturally increase the volume of run-off into the surrounding areas, and ultimately downstream as the waterways become increasingly burdened with run-off water and sedimentation. This will not only increase flooding, but also it will decrease the quality of all downstream waterways. Again, an effect clearly in contravention of ND 2025.

9. Petitioners allege the May 4, 2004 Parish and Zoning Commission hearing decreeing approval was done without proper notice to residents of Pirates Harbor Canal and Petitioners, thus denying Petitioners and residents and neighbors any voice in the decision making process, resulting in “spot” zoning, resulting in a violation of Petitioner’s due process and equal protection, guaranteed under the La. and U.S. Constitution and the laws of St. Tammany Parish.

10. Section 38 of Parish code mandates a training session 90 days after taking office as a Zoning Commission voting member. More than 90 days have passed, and Voting Commission members have not taken the mandated training session. Therefore, the May 4, 2004 P & Z approval of this project is null and void.

11. Petitioners allege the actions of the Parish Council in approving the proposed project are in violation of their own PUD requirements and the manner of their approvals result in violations of requirements mandated under the PUD ordinance and are in violation of state and federal laws.
    1. Section 2.801 Paragraph 1 of the PUD ordinance states the following criteria represents the objectives of the planned district:

       1. Environmentally sensitive design that is of a higher quality than would be possible under the regulations otherwise applicable to the property. There is nothing of an “environmentally sensitive design” in this plan to destroy such a vast 650 acres of wetlands.

    2. Petitioners allege Council members are making PUD after PUD decisions without being fully informed. And this aforesaid PUD approval is an excellent example of actions that are illegal, arbitrary, and capricious, acting with calculated or prejudicial facts of discretion, contrary to the general welfare of the surrounding property owners in violation of 2025 Master Land Use Plan and Parish PUD ordinances.

    3. The approval of this PUD decision without proper notice to petitioners results in an illegal spot zoning in violation of due process and equal protection and other laws of the State of Louisiana and the United States of America.

    4. Petitioner reserves all rights as submitted to the Parish Council in SOWL’s appeal of May 12, 2004
12. The approval of the proposed Lakeshore Estate/Village development by the Council, was given in spite of an obvious failure of the plans to meet all of the Parish’s own requirement for such approval. Moreover, the approval should not have been given in light of the provisions of ND 2025 and other PUD requirements, as they are clearly at odds with the effect this development will have on St. Tammany Parish. Such approval has aggrieved your petitioners, constitutes an abuse of discretion and an unreasonable exercise of the Council’s police power. Accordingly, Petitioners seek judicial review of the Council’s decision to grant approval, and, after due proceedings are had, pray that this Honorable Court issue judgment herein declaring that the approval given to Lakeshore Estate/Village by the St. Tammany Parish Council violates the ordinances of this Parish, including but not limited to PUD requirements, and the New Direction 2025 comprehensive land use plan.

13. Pursuant to the Louisiana Code of Civil Procedure arts. 3861 et seq., Plaintiffs request this Honorable Court issue a writ requiring the defendant to abide by the ordinances and laws of this St. Tammany Parish and withdraw its approval of the Lakeshore Village Estates planned unit development and rezoning.
    WHEREFORE, Plaintiffs pray for:
    1. A declaratory judgment and relief, declaring that the defendant’s actions in granting approval to the Lakeshore Village project is contrary to the laws of St. Tammany Parish, including its ordinances and comprehensive land use plan, New Directions 2025, and its own PUD requirements; and therefore that such actions are illegal and without effect;

    2. An alternative writ of mandamus issue directing the Defendant, the St. Tammany Parish Council, abide by the laws of St. Tammany Parish and withdraw its approval of the Lakeshore Estates/Village plan, or show cause to the contrary at a date to be selected by this Court; and after a hearing, the alternative writ of mandamus be made peremptory, and defendant St. Tammany Parish Council be cast will all cost of these proceedings;

    3. That the Defendant, The St. Tammany Parish Council, be served with a copy of this Petition and ordered to show cause at the date and hour assigned by the alternative writ of mandamus, why the alternative writ of mandamus should not be made peremptory; and

    4. For all other general and equitable relief appropriate under the circumstances.

22ND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA

SAVE OUR WETLANDS (SOWL) and GLYNN BROCK

VERSUS

THE ST. TAMMANY PARISH COUNCIL

ORDER

1. Certified copies of this Petition and Order be served upon the defendant in this proceeding; and

2. An alternative writ of mandamus issue, directing the defendant, The St. Tammany Parish Council to abide by the laws of St. Tammany Parish and withdraw its approval of the Lakeshore Estates and Lakeshore Villages Planned Unit Developments, or to show cause to the contrary on the _______ day of _______________, 2004 at ________________ a.m.

22ND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA

FRANK AND SUSAN CAROLLO, Et. al

VERSUS

THE ST. TAMMANY PARISH COUNCIL

AND

THE ST. TAMMANY PARISH ZONING COMMISSION

PETITION FOR JUDICIAL REVIEW, DECLARATORY JUDGMENT, 1ST AMENDED AND SUPPLEMENTAL PETITION

1. The Council’s decision to grant approval of the proposed development is contrary to the provisions of its own ordinances and constitutes an abuse of discretion and the unreasonable exercise of its police powers.

2. Before approving a subdivision at any stage, Planning and Zoning, and necessarily the Council when reviewing a decision of Planning and Zoning, must “review whether subdivision plans meet minimum requirements, and shall consider whether the plans ensure and conform to the best interest of the public health, safety, and welfare.” St. Tammany, La., Subdivision Regulation 40-038.0 (11/21/91).

   NON-COMPLIANCE WITH MINIMUM REQUIREMENTS FOR APPROVAL

3. The development plans as presented by the developer, and approved by the Council, did not meet the minimum requirements for approval for the following reasons:
   1. The location of all the proposed and/or existing servitudes has not been properly indicated as required by St. Tammany, La., Subdivision Regulation 40-50.0(o).

   2. FEMA Flood Map Firm Panel Number is missing from the plat as required by St. Tammany, La. Subdivision Regulation 40-50.0(2)(i)

   3. As required by St. Tammany, La. Subdivision Regulation 40-50.04 the developer has not submitted a notarized letter “stating that all utility companies, mainly those providing sewer, water, telephone and electric service to the new subdivision development, have been contacted regarding the need for the establishment of any utility easements, servitudes or rights.”

   4. No proper Traffic Impact Analysis (“TIA”) has been submitted with the developer’s application for subdivision approval as required by St. Tammany, La. Subdivision Regulation 40-042.30 and 40-042.80.

   5. Section 40-50.0(g) of the St. Tammany Parish Subdivision Regulations requires that an Environmental Assessment Data Form (“EA”) be submitted prior to receiving tentative approval. The EA submitted in this case is replete with erroneous and fallacious statements.

   6. The EA submitted in this case was prepared and signed by the developer of the project, which removes his ability to remain un-bias and impartial in his completion of the EA. Accordingly, the EA submitted with this proposed development should not be considered because a non-neutral paraty who clearly had a conflict of interest completed it.

   7. Section 40-037.0(L) of the St. Tammany Parish Subdivision Regulations requires: “A drainage system shall be provided and designed in accordance with the best modern engineering practices so as to adequately contain and carry off, to the point of ultimate disposal, such runoff as can be expected in the area, taking into consideration the number and type of buildings or structures to be erected in the subdivision and certifying that the runoff will not be increased by the proposed development” Id. No such drainage system has been provided and designed or produced with the application for tentative approval.

   NON-COMPLIANCE WITH NEW DIRECTIONS 2025

4. The citizens of St. Tammany Parish have expended hundreds of thousands of dollars and incalculable other resources on the development of the comprehensive land use plan named New Directions 2025 (“ND 2025”). The Council approved this comprehensive land use plan in December of 2003, giving it the force of law. In addition, the approval of ND 2025 by the Council is a clear statement by the Council that this comprehensive land use plan is in the best interest of this Parish. Accordingly, under Section 40-038.0 of the St. Tammany Parish Subdivision Regulations, the Council is under an obligation to follow the guidelines promulgated in ND 2025.

5. The development plans as presented by the developer, and approved by the Council, do not comply with the provisions of ND 2025 for the following reasons:
   1. Section III(c)(6)(a) of ND 2025 provides that: “The Parish should prohibit the deterioration of stream water quality from development of land use activities, including but not limited to, turbidity and silting from timbering, other agricultural activities, land clearing or development.” This Pugh project will kill over 12 large oak trees. The Thompson Road project will destroy more wetlands. Both projects destroy rural lands. The destruction of these critical habitats contravene the conservation principles encompassed in ND 2025.

6. The approval of the proposed project developments by the Council was given in spite of an obvious failure of the plans to meet all of the Parish’s own requirement for such approval. Moreover, the approval should not have been given in light of the provisions of ND 2025 and PUD requirements, as they are clearly at odds with the effect this development will have on St. Tammany Parish. Such approval has aggrieved your petitioners, constitutes an abuse of discretion and an unreasonable exercise of the Council’s police power. Accordingly, Petitioners seek judicial review of the Council’s decision to grant approval, and, after due proceedings are had, pray that this Honorable Court issue judgment herein declaring that the approval given to both the Pugh Rd. and Thompson Rd. projects by the St. Tammany Parish Council violates the ordinance of this Parish, PUD requirements, and the New Directions 2025 comprehensive land use plan.

7. Pursuant to the Louisiana Code of Civil Procedures arts. 3861 et seq., Plaintiffs request this Honorable Court issue a writ requiring the defendant to abide by the ordinances and laws of this St. Tammany Parish and withdraw its approval of the Pugh and Thompson Rd. projects.

1. A declaratory judgment and relief, declaring that the defendant’s actions in granting approval to the Pugh and Thompson Rd. projects are contrary to the laws of St. Tammany Parish, including its ordinances and comprehensive land use plan, PUD requirements, and New Directions 2025; and therefore that such actions are illegal and without effect;

2. For all other general and equitable relief appropriate under the circumstances.

3. That the defendant be served with both the original and amended and supplemental petition.

4. Petitioners repeat their prayer of relief as found in the original petition filed herein.