STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
CITY OF MANDEVILLE PLANNING AND ZONING COMMISSION
AND CITY OF MANDEVILLE
Judgment Rendered: JUN 2 7 2023
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2021- 14162
The Honorable August J. Hand, Judge Presiding
Pedro F. Galeas Counsel for PlaintifflAppellant,
New Orleans, Louisiana Livingston Suites, LLC
David B. Parnell, Jr. Counsel for Defendants/ Appellees,
Elizabeth S. Sconzert City of Mandeville Planning and
Mandeville, Louisiana Zoning Commission and City of
Mandeville
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
MILLER, J.
This matter is before us on appeal by plaintiff, Livingston Suites, LLC, from
a judgment of the trial court sustaining a peremptory exception of prescription in
favor of defendants, the City of Mandeville Planning and Zoning Commission and
the City of Mandeville, and dismissing its claims. For the reasons that follow, we
affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On September 30, 2021, Livingston Suites, LLC (" Livingston") filed a
petition for relief against the City of Mandeville Planning and Zoning Commission
the Zoning Commission") and the City of Mandeville from a denial of its request
to re -zone a certain piece of property containing a four -unit multifamily structure,
from an R- 1 to an R- 3 classification.' Livingston alleged that its request for
reclassification of the zoning designation was denied by the Zoning Commission
on June 22, 2021.
Livingston further alleged that the Mandeville City Council
agreed with the decision of the Zoning Commission and, as a result, refused to
place Livingston' s application for reclassification of zoning on their agenda.
Alternatively, Livingston sought monetary damages contending that the
defendants'
denial of its zoning reclassification request amounts to a regulatory
taking for which the defendants are required to pay just compensation. Livingston
contends that the defendants'
actions arbitrarily and capriciously deprived it of
reasonable and proper use of its property, and thus prayed for a judgment either
reclassifying the zoning for the property as R-3; remanding the matter to the
Mandeville City Council to change the zoning designation; or awarding Livingston
a judgment for the true market value of its property.
Livingston alleged that the property suffered flood damage in 2012 and has been vacant
ever since, causing the loss of its R-3 zoning designation. Livingston contends that it purchased
the property in 2019 hoping to repair and restore the property to its former use.
2
The defendants answered the petition and filed a peremptory exception of
prescription seeking dismissal of Livingston' s suit. In their exception, the
defendants focus on the timeliness of Livingston' s challenge to the Zoning
Commission' s decision. In support, the defendants contended that Livingston
attended the June 22, 2021 meeting and thus became aware of the denial of its
request at that time. The defendants further contended that the minutes from the
June 22,
2021 meeting were formally adopted at the July 27, 2021 Zoning
Commission meeting and were made available to the public in certified form on
July 28, 2021. Thus, the defendants contended that even utilizing the later date,
pursuant to La. R.S. 33: 4727( E)( 1),
Livingston had thirty days from July 29, 2021,
to file its petition, making the
filing due on Monday, August 30, 2021. 2
Accordingly, the defendants concluded that Livingston' s petition filed on
September 30, 2021, was untimely on its face.
At a hearing on April 21, 2022, the trial court agreed and granted the
exception. On May 24, 2022,
the trial court signed a judgment sustaining the
exception of prescription and dismissing the claims in Livingston' s petition with
prejudice. It is from this judgment that Livingston appeals. 3 Pursuant to an interim
2The defendants further acknowledged Governor Edwards' Proclamation Number 170,
which extended certain legal deadlines due to Hurricane Ida. The defendants contended that
although the proclamation did not apply to Title 33 of Louisiana Revised Statutes, even if it had,
prescription would have run on September 27, 2021.
3The May 24, 2022 judgment granted the " Movant' s" exception of prescription and
dismisse[ d] the claims of Petition." During the pendency of this appeal, this court issued an
interim order noting that pursuant to La. C. C.P. art. 1918( A), a final judgment shall be identified
by appropriate language and shall, in its decree, identify the name of the party in whose favor the
relief is awarded, the name of the party against whom relief is awarded, and the relief that is
awarded. See D' Luca v. Kirkland, 2020- 0713, 2020-0714 ( La. App. 1st Cir. 2/ 19/ 21), 321 So. 3d
411, 413.
The interim order also pointed out that in a case with multiple defendants and claims,
the failure to name the defendants against whom the judgment is rendered and the failure to
specify which claims are dismissed makes the judgment fatally defective. See Rushing v.
Southeastern
1170451, *
Louisiana University, 2020- 0669, 2020-0672 ( La. App. lst Cir. 3/ 29/ 21), 2021 WL
2- 3 ( unpublished).
Applying these precepts to the instant case with multiple defendants and multiple claims,
this court found the judgment defective where it failed to indicate which claims were dismissed
against which defendant.
This court further found the judgment deficient where it failed to
properly identify the party in whose favor the relief is awarded, i.e., the " Movant." This court
thus remanded the matter to the trial court with instructions to correct the foregoing deficiencies
3
order of this court noting certain deficiencies in the judgment, an amended
judgment, signed on May 31, 2023, was issued by the trial court and supplemented
in the record before us.
DISCUSSION
Liberative prescription is a mode of barring actions as a result of inaction for
a period of time. La. C. C. art. 3447. Ordinarily, a party urging an exception of
prescription bears the burden of proving that the prescriptive period has elapsed.
Brecheen v. Skok, 2022- 0624 ( La. App. 1St Cir. 12/ 22/ 22), So. 3d ,
2022 WL1784396, * 1, writ denied, 2023- 00404 ( La. 5/ 16/ 23), _ So. 3d _, 2023
WL 3476102. However, if the petition is prescribed on its face, the burden shifts
to the plaintiff to show that his action is not prescribed. Templet v. State through
Department of Public Safety and Corrections, 2019- 0037 ( La. App. 1St Cir.
11/ 15/ 19), 290 So. 3d 187, 191.
Evidence may be introduced to support or controvert the exception of
prescription when the grounds thereof do not appear from the petition. La. C. C. P.
art. 931. Evidence not properly offered and introduced cannot be considered, even
if it is physically placed in the record. For example, documents attached to
memoranda do not constitute evidence and cannot be considered as such on appeal.
Denoux v. Vessel Management Services, Inc., 2007- 2143 ( La. 5/ 21/ 08), 983 So. 2d
84, 88.
In the absence of evidence, the exception must be decided on the facts
alleged in the petition, which are accepted as true. Duckworth v. Louisiana Farm
Bureau Mutual Insurance Company, 2011- 2835 ( La. 11/ 2/ 12), 125 So. 3d 1057,
1072.
and to issue and amended judgment, which complies with La. C. C. P. art. 1918. See La. C. C. P.
arts. 1918( A), 1951, and 2088( A)( 12).
The record before us was subsequently supplemented with an amended judgment signed
by the trial court on May 31, 2023. The amended judgment corrected the previous judgment by
properly identifying the parties. The amended judgment further held that " Plaintiff' s petition is
prescribed" and dismissed " plaintiff' s petition."
19
In this case, both sides attached documents to their respective memoranda in
support of and in opposition to the exception. However, the referenced documents
do not constitute evidence, and since not admitted, cannot be considered on appeal.
See Alliance Hospital, L.L.C. v. Esquivel, 2020- 0807 ( La. App. 1St Cir. 2/ 24/ 21),
322 So. 3d 253, 256, citing Denoux, 983 So. 2d at 88; Templet, 290 So. 3d at 191.
At the hearing, the defendants introduced, without objection, the affidavit of
Alexander Weiner, Secretary of the Zoning Commission, to which the minutes of
the June 22, 2021 and July 27, 2021 Zoning Commission meetings were attached.'
No other evidence was introduced.
At the outset, Livingston contends on appeal that its claim is not prescribed
because the Zoning Commission' s vote with reference to the zoning request was
not a " decision," but instead, was merely a recommendation that the Mandeville
City Council could consider when making its decision. Livingston argues that the
City of Mandeville is the decision maker, through its city council, which possesses
the ultimate authority to determine whether a zoning request should be granted.
Livingston contends that this matter should be remanded to the Mandeville City
Council to make a formal decision as to whether its request should be granted.
In support of its argument that the only authority vested in the Zoning
Commission is the authority to make recommendations to the city council,
Livingston relies on Subsection ( 1) of Section 2.2.7 of the City of Mandeville Code
of Ordinance' s Comprehensive Land Use Regulation Ordinance. Section 2.2. 7
provides as follows:
The Zoning Commission shall exercise all of the powers and
duties conferred by Louisiana R.S. 33: 4721 through R.S. 33: 4729
inclusive and shall exercise all powers and duties which are now or
may hereafter be assigned to it by City Charter, these Land Use
Regulations or any other ordinance of the City Council, including
but not limited to the following:
Although the affidavit is signed by Mr. Weiner, it is not notarized or dated.
F
1.Recommend to the City Council, after public hearing before the
Zoning Commission, the boundaries of the various zoning districts as
well as the restrictions and regulations to be enforced therein, and
any supplements, changes or modifications thereof.
2.
Make recommendations to the City Council regarding the zoning
of parcels of land upon annexation into the City.
A reading of the entire ordinance, however, reveals that it is not nearly as
restrictive as Livingston suggests. In addition to authorizing the Zoning
Commission to make recommendations to the city council, the ordinance provides
that the Zoning Commission shall exercise all powers and duties conferred by La.
R.S. 33: 4721 through R.S. 33: 4729 and its Land Use Regulations.
Pursuant to La. R.S. 33: 4727( C)( 3)( c), a board of adjustment has the
authority to " vary or modify" zoning regulation applications " so that the spirit of
the ordinance shall be observed, public safety and welfare secured, and substantial
justice done."
Louisiana Revised Statute 33: 4727. 1 specifically permits the board
of aldermen of the City of Mandeville to authorize the Zoning Commission of the
City of Mandeville " to exercise any or all powers, duties, and responsibilities
which may be exercised under the provisions of R.S. 33: 4727 by a board of
adjustment." Moreover, Section 2. 2. 8 of the City of Mandeville Code of
Ordinance' s Comprehensive Land Use Regulation Ordinance provides that, under
the authority of La. R.S. 33: 4727. 1, " the Zoning Commission of the city of
Mandeville shall continue to exercise the powers, duties and responsibilities which
may be exercised by a Board of Adjustments and Appeals under the provisions of
Louisiana R.S. 33: 4727." 1
Interpreted together, the statutes and local ordinances above clearly vest the
Zoning Commission with the authority to " vary or modify" zoning regulation
With reference to regulations governing the use of buildings, La. R.S. 33: 4721 provides
that buildings may be regulated for the purpose of promoting health, safety, morals, or the
general welfare of the community. In regulating the use of a building, acts of the zoning
commission, board of adjustment, or zoning administrator shall be subject to judicial review on
the grounds of abuse of discretion, unreasonable exercise of the police powers, an excessive use
of the power herein granted, or the denial of the right of due process. La. R.S. 33: 4721.
applications. See La. R.S. 33: 4727( C)( 3)( c), La. R.S. 33: 4727. 1, and Sections
2. 2. 7 and 2.2. 8 of the City of Mandeville Code of Ordinance' s Comprehensive
Land Use Regulation Ordinance. Livingston has provided this court with no
authority in support of its contention that "[ t]he actual decision maker in this
matter is the Mandeville City Council." As such, we find no merit to Livingston' s
argument that the Zoning Commission did not have the authority to consider its
application requesting a variance and that its decision to deny same was merely a
recommendation to the city council.
As to the timeliness of Livingston' s petition, La. R.S. 33: 4727( E)( 1)
provides that any person aggrieved by any decision by the board of adjustment
may present to the district court of the parish or city in which the property affected
is located a petition, duly verified, setting forth that the decision is illegal, in whole
or in part, specifying the grounds of the illegality. The petition shall be presented
to the court within thirty days after the filing of the decision in the office of the
board. La. R.S. 33: 4727( E)( 1).
As noted by the defendants, " the filing of the decision in the office of the
board" is not defined in La. R.S. 33: 4727( E)( 1) or elsewhere in Title 33 of the
Louisiana Revised Statutes. Nonetheless, this statutory language has been
interpreted by this Court to mean within thirty days of the acceptance, approval,
and adoption of the minutes of the zoning board meeting. See Aucoin v. CitY of
Mandeville, 552 So. 2d 714, 717 ( La. App. 1St Cir. 1989) ( where the meeting of the
zoning board was held on March 26, 1985, and the minutes of that were
subsequently accepted, approved, and adopted on April 23, 1985, pursuant to La.
R. S. 33: 4727( E)( 1),
the latest day that a challenge of the zoning board' s decision
could have been filed was May 24, 1985).
The affidavit of Mr. Weiner and attached minutes introduced at the hearing
established that the Zoning Commission denied Livingston' s request for a variance
7
at its June 22, 2021 meeting. The minutes of the June 22, 2021 meeting were
unanimously approved and adopted at the Zoning Commission meeting on July 27,
2021. 6 Consequently, the latest date the
a petition
challenging Zoning
Commission' s decision could have been filed was Monday, August 30, 2021,
because August 28, 2021, was a Saturday. Livingston did not file its petition until
September 30, 2021. Pursuant to La. R.S. 33: 4727(E)( 1), the petition was not
timely filed. See Aucoin, 552 So. 2d at 717; see also Duhe v. East Baton Rouge
Parish Planning and Zoning Commission, 2012- 0271 ( La. App. 1st Cir. 11/ 2/ 12),
2012 WL, 5386404, * 2 ( unpublished) (
finding a petition challenging a decision of
the board of adjustment untimely where it was not appealed within thirty days of
the date the decision was filed in the Board' s office pursuant to La. R.S.
33: 4727( E)( 1)).
Opponents of an action taken by a zoning board are not entitled to a review
of the merits of the action after appeal delays have expired. Aucoin, 552 So. 2d at
717. Thus,
where Livingston' s appeal delays expired prior to the filing of its
petition, we find no error in the judgment of the trial court finding Livingston' s
challenge to the Zoning Commission' s decision prescribed.
As previously mentioned, in addition to its claim for relief from the zoning
decision, Livingston alternatively brought a claim, which was styled as a
regulatory taking" claim,
seeking damages. In their exception, although the
defendants primarily addressed the timeliness of their challenge to the zoning
decision, they concluded that "[ Livingston' s] suit for Relief and, alternatively,
Damages is prescribed on its face," and sought dismissal of Livingston' s entire
6Mr. Weiner attested that the Zoning Commission meetings are recorded and that audio
and video of the meetings are available for public viewing immediately following the meeting.
He further attested that audio and video from each meeting is placed on the internet for public
access viewing.
Mr. Weiner stated that the minutes from the meetings are available for viewing
prior to their adoption.
Livingston does not challenge computation of the time delays on appeal. Nonetheless,
as we previously noted, had Governor Edwards' Proclamation Number 170 suspending legal
deadlines applied to these proceedings, prescription would have run on September 27, 2021.
suit.
Moreover, the amended judgment before us on appeal dismisses the entirety
of the claims in Livingston' s petition with prejudice.
Livingston' s alternative claim for damages as a result of a regulatory taking,
however, is subject to a three- year prescriptive period. La. R.S. 13: 5111( A)
Actions for compensation for property taken by the state, a parish, municipality,
or other political subdivision or any one of their respective agencies shall prescribe
three years from the date of such taking."). Livingston alleges that the purported
regulatory taking occurred when the defendants denied its request for a
reclassification of zoning. Thus, the earliest possible date that Livingston' s request
could be considered as denied was June 22, 2021, when its request was denied at
the Zoning Commission meeting. As such, on the face of the petition, this claim
remains viable.' No evidence or argument was presented to the trial court to
suggest otherwise. Accordingly, to the extent that the trial court found that
Livingston' s regulatory taking claim was prescribed, we find the trial court erred.
CONCLUSION
For the above and foregoing reasons, the portion of the May 31, 2023
amended judgment of the trial court dismissing Livingston' s claim for relief from
the decision of the Zoning Commission as prescribed is affirmed. The portion of
the May 31, 2023 judgment of the trial court dismissing Livingston' s claim for
damages for a regulatory taking as prescribed is reversed.
Costs of this appeal are assessed one half to the plaintiff/appellant,
Livingston Suites, LLC, and one half to the defendants/ appellees,
the City of
Mandeville Planning and Zoning Commission and the City of Mandeville.
AFFIRMED IN PART AND REVERSED IN PART.
8The determination that this claim has not prescribed, should in no way be construed as
an indication as to the claim' s ultimate merit.
9