Brookstone developer challenges Ascension planning commission's power _lowres

 

Brookstone developer America Homeland claims the Ascension Parish Planning Commission didn’t have the legal authority to deny the company’s proposed 86-home subdivision in Prairieville and the commissioners acted capriciously when they factored in drainage concerns from surrounding neighborhoods to justify the vote.

The development company, which has built several other subdivisions in the parish, including the big Keystone neighborhood in Galvez, made the claims earlier this month in an administrative appeal of the commission’s Feb. 10 denial of Brookstone’s preliminary plat.

Bringing to the fore a running debate over the extent of the commission’s power, America Homeland and its owner, Kevin Nguyen, wrote that denial of Brookstone’s preliminary plat “was wrong and arbitrary and capricious” based on existing case law and should be overturned.

Because of the decision, Nguyen added, individual commissioners also “are in direct danger of losing” their immunity from being sued individually.

No lawsuit has been filed over the case. Lester Kenyon, parish government spokesman, said Tuesday that a meeting date for the three-person Planning Commission Appeals Board has not yet been set. The rarely used body is appointed by the parish president. The Appeals Board has 40 days from the March 7 appeal to decide on the matter.

The Brookstone appeal was obtained Tuesday through a public records request. The lawyer and the engineer for America Homeland could not be reached for comment by deadline Wednesday.

The Planning Commission’s 3-1 denial happened just before a major change in membership on the seven-person commission amid a broader debate about whether the commission has the discretionary authority granted a legislative body to deny projects over off-site road and drainage problems.

Before the vote, the commissioners heard from residents in surrounding neighborhoods about chronic flooding since major subdivisions moved into the area off Parker Road and La. 929.

Parish drainage engineers added then that they suspect drainage miscalculations with those old projects are the source of the problem and were urging those projects’ developers to find a solution with Nguyen.

The commissioners who voted to deny the Brookstone plat said then they did not want to exacerbate drainage problems in the area. Commission Chairman Matt Pryor, a lawyer and often a cautious voice on the commission’s ability to say “no,” said he was reluctantly voting to cast the third and final vote to deny, so Brookstone’s developer could help solve the drainage problems.

“So that the people who are there, who have a vested interest in their homes and the personal property that they’ve developed and where they want to live, can enjoy that and not worry about what more an increased to amount of water flowing off the property will do,” Pryor said at the time.

The vote in February marked a major shift for the commissioners as many were on their way out. Residents fighting various neighborhoods last year and this year and critics of the commission claimed the commission was failing to use its discretionary power even when the parish planning staff was recommending denials based on the parish’s master plan or other traffic or drainage shortcomings.

The parish is seeking a still pending legal opinion from the state Attorney General’s Office about the extent of the commissioners’ authority.

State law says approval of subdivision plats is a legislative function.

But Parish Attorney O’Neil Parenton Jr. told the Attorney General’s Office in a Jan. 26 letter requesting the opinion that parish legal advisers have told commissioners to exercise that power “cautiously” when projects comply with all parish rules. Otherwise, commissioners could face personal legal liability for their decisions.

Parenton wrote that recommended caution arises, in part, from a 1997 federal suit against the Ascension commission in which the judge found approval of preliminary plats is an administrative act, not a legislative one with broad discretion. Commissioners can deny preliminary plats, however, when projects don’t follow parish rules, the judge found. That commission had denied a proposed neighborhood known as The Bluffs.

Nguyen’s appeal points to the same body of case law, including the Ascension case, in claiming the commission doesn’t have the discretion when a project complies with parish rules.

For Brookstone, parish engineers initially withheld approval because a required drainage study had not been finished and because of continuing problems on surrounding properties.

But the afternoon of the meeting, parish engineers switched their finding, saying Brookstone had complied. Drainage Engineer Rhonda Braud said then that the parish was changing the depth of drainage analysis required at the preliminary plat stage and saving detailed work for later review.

In The Bluffs case from the 1990s, the federal court ended up finding those commissioners did retain some legal immunity and dismissed them from the suit because that developer failed to comply with parish regulations.