Jefferson Parish did not abuse its authority when it called for a land-use study and construction moratorium on 24 acres around Behrman Highway in 2007, a state district court judge ruled last week.
Judge Stephen Enright, of 24th Judicial District Court, in Gretna ruled against two landowners who sued the parish in 2008, claiming officials used the zoning study to quash a $1.2 million deal the owners had with Volunteers of America to build a 200-unit affordable housing complex for seniors on a 4.4-acre parcel.
Thelma and Richard Berry said opposition to the development by Jefferson Parish Councilman Chris Roberts, who called for the study, showed the parish was acting in bad faith.
They said the development moratorium triggered by the study prevented Volunteers of America from being able to qualify for tax breaks needed to make the deal work financially, and the organization walked away from the deal.
The parish, however, countered in court that the comprehensive plan adopted in 2003 called for such a study in cases where a proposed development is out of step with what the plan designates as the goal for the area. The Berrys’ property was zoned for mixed-use commercial development, but the comprehensive plan called for the area to be low-density residential.
The Berrys pointed to a variety of other nonconforming uses in the area, but the parish maintained those projects preceded the plan and were grandfathered in when it was adopted. They never would have been allowed as new developments, the parish said, and the proposed Volunteers of America apartment complex was simply too dense.
Enright said the main goal of the comprehensive plan is to preserve existing neighborhoods, and he ruled the parish was acting within its legitimate authority to protect the health, safety and welfare of the public when it called for the study.
As for Roberts’ opposition, the judge noted there was opposition from residents within his district and that public input is a fair part of the process.
Enright dismissed the Berrys’ claim that the ultimate split zoning approved for the property — commercial in the front section and residential in the back — amounted to theft of the land, noting that the prohibition against taking of private property for public use without just compensation — enshrined in the Fifth Amendment — does not guarantee the landowner the most profitable use of his or her property.
The ruling noted that Volunteers of America also was not able to get a designated but unbuilt street running through the property revoked and that a pipeline servitude it needed to get canceled was still in place when the tax credits expired.
Enright’s ruling said the burden of proof on the plaintiffs in a case of this kind is “extraordinary” and that the Berrys failed to show the parish made its decision unreasonably or arbitrarily.
He dismissed the suit with prejudice, meaning it cannot be refiled, though his ruling can be appealed.
Richard Berry could not be reached for comment Saturday.
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