New Cingular Wireless, PCS, LLC v. City-Parish of East Baton Rouge ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0292
NEW CINGULAR WIRELESS, PCS, LLC
VERSUS
OJAI d
CITY -PARISH OF EAST BATON ROUGE
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k-
Judgment Rendered:
DEC 3 0 2021
L, A
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 697461
The Honorable Donald R. Johnson, Judge Presiding
Gregory E. Bodin Attorneys for Plaintiff/Appellant
Derbigny W. Daroca New Cingular Wireless, PCS, LLC
Baton Rouge, Louisiana d/ b/ a AT& T Mobility
Anderson O. " Andy" Dotson, III Attorneys for Defendant/ Appellee
Parish Attorney City of Baton Rouge/ Parish of
David M. Lefeve East Baton Rouge
A. Gregory Rome
Sarah S. Monsour
Courtney Humphrey
Special Assistant Parish Attorneys
Baton Rouge, Louisiana
John Stone Campbell, III Attorneys for Intervenor/Appellee
Michael A. Grace Mosely Holdings, LLC
Baton Rouge, Louisiana
BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.
PENZATO, J.
This appeal is taken from the district court' s decision affirming the City of
Baton Rouge/Parish of East Baton Rouge Board of Appeals' decision declining to
reverse a revocation notice of a permit for the installation of small cell wireless
equipment. For the reasons that follow, we affirm the district court' s judgment.
FACTS AND PROCEDURAL HISTORY
New Cingular Wireless, PCS, LLC d/ b/ a AT& T Mobility (AT& T) applied for
a permit to install small cell wireless equipment, including a pole and antenna ( cell
tower),
at approximately 55 locations in Baton Rouge, Louisiana. The City of Baton
Rouge/ Parish of East Baton Rouge ( City/Parish) issued the permit on October 3,
2018 ( permit), which included the location of 9551 Antioch Road (Antioch location)
at the southeast corner of Antioch Road and Columns Way. In effect at this time
was City/Parish Ordinance No. 16657, which adopted Title 2, Chapter 9 of the Code
of Ordinances, entitled Small Wireless Facilities numbered Section 2: 380- 389
Small Wireless Facilities Ordinance). AT& T installed the cell tower at the Antioch
location in December 2019. Thereafter, in undated email correspondence from
Michael P. Wich, a Building Official with the Department of Development of the
City/Parish ( Building Official), which AT& T received on March 23, 2020, the
City/Parish revoked and terminated the permit issued at the Antioch location, stating
that this area was publicly dedicated with certain stipulations that prevented the
issuance of the permit ( Revocation Notice). The Revocation Notice stated that all
equipment and structures " shall be removed by May 20, 2020." ( Emphasis in
original).
On April 3, 2020, AT& T, alleging that the Building Official improperly
revoked the permit, appealed to the Board of Appeals for the City/Parish ( Board of
Appeals), pursuant to the City/Parish Code of Ordinances, Title 8, Sections 8: 1 and
8: 2, which adopted the International Building Code ( IBC) and International
2
Residential Code ( IRC) with certain amendments. Section 112. 1 of the IRC and
Section 113. 1 of the IBC' permit the establishment of a Board of Appeals " to hear
and decide appeals of orders, decisions[,] or determinations made by the building
official relative to the application and interpretation of this code." Title 8, Chapter
1, Section 8. 2 of the City/Parish Code of Ordinances amended Section 112 of the
IRC and Section 113 of the IBC to establish certain membership, notices of
violations, penalties, and other issues.
At the time of this permit, the 2015 IBC and IRC were in effect. Section 112 of the IRC provided:
BOARD OF APPEALS
R112. 1 General. In order to hear and decide appeals of orders, decisions or
determinations made by the building official relative to the application and
interpretation of this code, there shall be and is hereby created a board of appeals.
The building official shall be an ex officio member of said board but shall not have
a vote on any matter before the board. The board of appeals shall be appointed by
the governing body and shall hold office at its pleasure. The board shall adopt rules
of procedure for conducting its business, and shall render decisions and findings in
writing to the appellant with a duplicate copy to the building official.
R112.2 Limitations on authority. An application for appeal shall be based on a
claim that the true intent of this code or the rules legally adopted thereunder have
been incorrectly interpreted, the provisions of this code do not fully apply or an
equally good or better form of construction is proposed. The board shall not have
authority to waive requirements of this code.
R112. 3 Qualifications. The board of appeals shall consist of members who are
qualified by experience and training to pass judgement on matters pertaining to
building construction and are not employees of the jurisdiction.
R112. 4 Administration. The building official shall take immediate action in
accordance with the decision of the board. [ Emphasis in original omitted].
Section 113 of the IBC provided:
BOARD OF APPEALS
A] 113. 1 General. In order to hear and decide appeals of orders, decisions or
determinations made by the building official relative to the application and
interpretation of this code, there shall be and is hereby created a board of appeals.
The board of appeals shall be appointed by the applicable governing authority and
shall hold office at its pleasure. The board shall adopt rules of procedure for
conducting its business.
A] 113. 2 Limitations on authority. An application for appeal shall be based on
a claim that the true intent of this code or the rules legally adopted thereunder have
been incorrectly interpreted, the provisions of this code do not fully apply or an
equally good or better form of construction is proposed. The board shall not have
authority to waive requirements of this code.
A] 113. 3 Qualifications. The board of appeals shall consist of members who are
qualified by experience and training to pass on matters pertaining to building
construction and are not employees of this jurisdiction. [ Emphasis in original
omitted].
3
On May 28, 2020, the Board of Appeals met and declined to reverse the
Revocation Notice. On June 26, 2020, AT& T filed a Petition for Judicial Review
and Injunctive Relief ( Petition) in the district court pursuant to La. R.S.
33: 4780. 47( A), which provides that any party aggrieved by any decision relative to
any officer, department, board, or bureau of the parish may present a petition to the
district court of the parish in which the property affected is located within thirty days
after the filing of the decision in the office of the board. AT& T sought the reversal
of the Revocation Notice and injunctive relief.
The City/Parish opposed the Petition asserting that the Antioch location was
included in a larger donation of property evidenced in a Donation of Right of Way
and Dedication of Servitudes ( Donation) from Mosely Holdings, LLC ( Mosely
Holdings) on July 30, 2014. 2 The City/Parish claimed that after the permit
application was submitted, it was informed that the cell tower violated the Planned
Unit Development ( PUD), which requires all utilities to be underground. The
City/Parish maintained that it informed AT& T that the Antioch location was subject
to certain stipulations and that the City/Parish had properly revoked the permit
pursuant to IBC Section 105. 6, which authorizes the City/Parish to revoke permits
when the permit was issued in error or on the basis of incorrect, inaccurate, or
incomplete information.
Mosely Holdings intervened in the present matter asserting that the cell tower
is located on property donated by Mosely Holdings to the City/Parish for the
construction of Antioch Road, which runs through the Long Farm Village
Z We first note that the City/Parish attached to its opposition a Donation of .306 acres from RKL
Farm, LLC containing parcels 9- 1, 10- 1, 12- 2, 13- 1, and 13- 2, which was recorded in the
City/Parish mortgage records at Orig. 241 l3ndl. 12597 on August 7, 2014. However, the
intervenor, Mosely Holdings, LLC, attached a Donation of 7. 397 acres containing parcels 7- 1, 8-
2, and 12- 1, which was recorded in the City/Parish mortgage record at Orig. 245 l3ndl. 12597 on
August 7, 2014. AT& T refers to the Donation in its Petition as the one recorded at Orig. 245 l3ndl.
12597. Therefore, any reference to the Donation is to the property donated by Mosely Holdings,
LLC where the cell tower is located.
C!
development, a PUD. Mosely Holdings contended that the Donation limited the
servitudes granted to the City/Parish for the sole purpose of completing the extension
of Antioch Road and for personal servitudes on either side of Antioch Road to slope
for drainage. Mosely Holdings also alleged that the PUD map corresponding to the
Long Farm Village development expressly requires AT& T service to be " via
underground conduits and wiring."
The parties entered into an agreement rendering the request for injunctive
relief moot. Thereafter, the district court held a hearing on August 18, 2020, where
all parties agreed to the introduction of all exhibits previously filed, including all
affidavits in lieu of live testimony.' Following the hearing, the district court
requested that the parties file recommendations for findings of fact and conclusions
of law and took the matter under advisement. On October 20, 2020, the district court
rendered a judgment adopting the Proposed Findings of Facts and Conclusions of
Law submitted by the City/Parish, denying the Petition, finding the permit was
legally revoked and the City/Parish' s revocation was neither arbitrary nor capricious,
and dismissing the Petition. It is from this judgment that AT& T appeals.
ASSIGNMENTS OF ERROR
AT& T asserts that the Board of Appeals erred in affirming the revocation of
a validly issued permit, claiming ( 1) that the dedication of the road conveyed
ownership to the public; ( 2) that the Declaration of Covenants, Conditions, and
Restrictions for Long Farm Subdivision ( Long Farm Restrictions) only require
utilities be put underground " whenever reasonably possible"; ( 3) that the Revocation
Notice violated numerous laws; and ( 4) that the Revocation Notice violated AT& T' s
property rights. Furthermore, AT& T claims that the action of the Building Official
was arbitrary and capricious.
Under La. R. S. 33: 4727( E)( 4), a district court may take additional testimony or receive additional
evidence as part of its consideration of an appeal. Esplanade Ridge Civic Association v. City of
New Orleans, 2013- 1062 ( La. App. 4th Cir. 2/ 12/ 14), 136 So. 3d 166, 169.
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APPLICABLE LAW
Standard of Review
On judicial review of a decision by an administrative agency, an aggrieved
party may seek review of same by appeal to the appropriate appellate court. On
review of the district court' s judgment, no deference is owed by the court of appeal
to factual findings or legal conclusions of the district court, just as no deference is
owed by the Louisiana Supreme Court to factual findings or legal conclusions of the
court of appeal.
Our Lady ofLake Roman Catholic Church, Mandeville v. City of
Mandeville, Planning & Zoning Commission, 2013- 0837 ( La. App. 1 st Cir. 213114),
147 So. 3d 186, 189. Thus, an appellate court sitting in review of an administrative
agency reviews the findings and decision of the administrative agency and not the
decision of the district court. Id.The exclusive grounds upon which an administrative agency' s decision may
be reversed or modified on appeal are enumerated in La. R.S. 49: 964( G), which
provides:
The court may affirm the decision of the agency or remand the case for
further proceedings. The court may reverse or modify the decision if
substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
1) In violation of constitutional or statutory provisions;
2) In excess of the statutory authority of the agency;
3) Made upon unlawful procedure;
4) Affected by other error of law;
5) Arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion; or
6) Not supported and sustainable by a preponderance of evidence as
determined by the reviewing court. In the application of this rule, the
court shall make its own determination and conclusions of fact by a
preponderance of evidence based upon its own evaluation of the record
reviewed in its entirety upon judicial review. In the application of the
rule, where the agency has the opportunity to judge the credibility of
witnesses by first-hand observation of demeanor on the witness stand
0
and the reviewing court does not, due regard shall be given to the
agency' s determination of credibility issues.
A challenge to a zoning decision in Louisiana is a de novo proceeding on the
issue of whether the result of the legislation is arbitrary and capricious. Truitt v.
West Feliciana Parish Government, 2019- 0808 ( La. App. 1 st Cir. 2/ 21/ 20), 299 So.
3d 1005 103. It is only when an action of a zoning commission is found on judicial
review to be palpably unreasonable, arbitrary, an abuse of discretion, or an
unreasonable exercise of police power that such action will be disturbed. City of
Baton Rouge/Parish ofEast Baton Rouge v. Myers, 2013- 2011 ( La. 5/ 7/ 14), 145 So.
3d 320, 327- 28; Our Lady ofLake Roman Catholic Church, Mandeville, 147 So. 3d
at 191; see Dupuis v. City of New Orleans through Zoning Board of Zoning
Adjustments, 2017- 0052 ( La. App. 4th Cir. 8/ 2/ 17), 224 So. 3d 1046, 1049
quotation omitted) (" Our jurisprudence indicates that ` the decisions of the [ Board
of Zoning Adjustments] ... are subject to judicial review only as to whether they are
arbitrary, capricious or an abuse of discretion.")
The test of whether a zoning board' s action is arbitrary and capricious is
whether the action is reasonable under the circumstances. King v. Caddo Parish
Commission, 97- 1873 ( La. 10/ 20/ 98), 719 So. 2d 410, 418. " A reviewing court does
not consider whether the district court manifestly erred in its findings, but whether
the zoning board acted arbitrarily, capriciously or with any calculated or prejudicial
lack of discretion." Id. (quoting Papa v. City of Shreveport, 27, 045 ( La. App. 2nd
Cir. 9/ 29/ 95), 661 So. 2d 1100, 1103, writ denied, 98- 2634 ( La. 12/ 11/ 98), 730 So.
2d 460); Truitt, 299 So. 3d at 103.
Zoning
Zoning is a general plan designed to foster improvement by confining certain
classes of buildings and uses of property to certain localities. The purpose of zoning
is to reduce or eliminate the adverse effects that one type of land use might have on
7
another.
Jenkins v. St. Tammany Parish Police Jury, 98- 2627 ( La. 7/ 2/ 99), 736 So.
2d 1287, 1290. Louisiana Constitution article VI, Section 17 gives local
governments broad powers to adopt regulations for land use, zoning, and historic
preservation. Louisiana Revised Statute 33: 4780. 40 also confers upon parish
governments the authority to enact zoning regulations. In order to exercise these
zoning powers, the governing authority of the parish must appoint a zoning
commission. La. R.S. 33: 4780. 45.
The jurisprudence clearly states that zoning is a legislative function, the
authority for which flows from the police power of governmental bodies. King, 719
So. 2d at 418. A zoning regulation is valid if it bears a rational relation to the health,
safety and welfare of the public. All ordinances are presumed valid. Myers, 145 So.
3d at 327. The local government' s zoning authority is delineated in La. R.S. 33: 4721
et seq. and La. R.S. 33: 4780.40 et seq. The governing authority may regulate and
restrict the erection, construction, alteration, or use of buildings, structures, or land.
La. R. S. 33: 4722( A); La. R. S. 33: 4780. 41; Myers, 145 So. 3d at 328.
Louisiana Revised Statute 33: 4780.46 permits a municipality to appoint a
board of adjustment to hear and decide certain zoning appeals. In the present case,
AT& T sought judicial review pursuant to La. R.S. 33: 4780.47( A), which states:
Any person or persons jointly or severally aggrieved by any decision
by the board of adjustment relative to any officer, department, board,
or bureau of the parish may present a petition to the district court of the
parish in which the property affected is located. Such petition shall be
duly verified, set forth that the decision is illegal, in whole or in part,
and specify 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.
Although La. R. S. 33: 4780. 47( A) refers to the board of adjustment, the
City/Parish also had the authority through its enacted ordinances to establish the
Board of Appeals. City/Parish Code of Ordinances, Chapter 1, Sections 8: 1 and 8: 2.
Furthermore, acts of a local governing authority' s zoning commission, board of
n.
adjustment, or zoning administrator are subject to judicial review on the grounds of
abuse of discretion, unreasonable exercise of police powers, excessive use of power
granted, or the denial of the right of due process. La. R.S. 33: 4780.40. The Board
of Appeals is also a division of the City/Parish and La. R.S. 33: 4721 et seq. and La.
R.S. 33: 4780.40 et seq. are applicable herein.
Small Wireless Facilities Ordinance
AT& T first argues that the permit was originally lawfully issued to it, and
therefore, should not have been revoked. The Small Wireless Facilities Ordinance
Sec. 2: 380( B) provides, in pertinent part:
Intent. In enacting this Chapter, the City -Parish is establishing uniform
standards to address issues presented by small wireless facilities,
including without limitation, to:
5) preserve the character of the neighborhoods in which facilities are
installed; ...
The 2015 IBC Sec. 105. 6, adopted by the City/Parish Code of Ordinances, Chapter
1, Sec. 8: 1, provided:
The building official is authorized to suspend or revoke a permit issued
under the provisions of this code wherever the permit is issued in error
or on the basis of incorrect, inaccurate or incomplete information, or in
violation of any ordinance or regulation or any of the provisions of this
code. ( Emphasis in original).
Turning to consideration of whether the action of the Board of Appeals in
affirming the Building Official was arbitrary or unreasonable, we note a primafacie
presumption of validity attaches to a zoning board' s actions. Deer Chase, LLC v.
East Feliciana Parish Police Jury, 2017- 0120 ( La. App. 1 st Cir. 3/ 9/ 18), 2018 WL
1282815, at * 5( unpublished) ( citing Freeman v. Kenner Board of Zoning
Adjustments, 09- 1060 ( La. App. 5th Cir. 4/ 27/ 10), 40 So. 3d 207, 212; Papa, 661
So. 2d at 1103). As we stated earlier, because zoning falls under the jurisdiction of
the legislature, courts will not interfere with a zoning board' s prerogative unless the
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action is palpably erroneous and without any substantial relation to the public health,
safety, or general welfare. Deer Chase, 2018 WL 1282815, at * 5 ( citing Toups v.
City of Shreveport, 2010- 1559 ( La. 3/ 15/ 11), 60 So. 3d 1215, 1217; King, 719 So.
2d at 418). A reviewing court cannot substitute its own judgment nor interfere with
a zoning decision absent a showing that the board was arbitrary and capricious or
abused its discretion. Deer Chase, 2018 WL 1282815, at * 5.
An action is " arbitrary and capricious" when it is a willful and unreasoning
action, absent consideration and in disregard of the facts and circumstances of the
case. Id., 2018 WL 1282815, at * 5 ( citing Toups, 60 So. 3d at 1217); see Truitt, 299
So. 3d at 103. The test of whether an action is arbitrary or capricious is whether the
action is reasonable under the circumstances. Id., 2018 WL 1282815, at * 5 ( citing
King, 719 So. 2d at 418; Clark v. City of Shreveport, 26, 638 ( La. App. 2nd Cir.
5/ 10/ 95), 655 So. 2d 617, 622.) On appeal, a person who opposes a zoning board' s
decision bears the burden of proving that the decision was arbitrary, capricious and
unreasonable. Id., 2018 WL 1282815, at * 5 ( citing Parish ofJefferson v. Davis, 97-
1200 ( La. App. 5th Cir. 6/ 30/ 98), 716 So. 2d 428, 433, writ denied, 98- 2634 ( La.
12/ 11/ 98), 730 So. 2d 460). When the propriety of a zoning decision is debatable, it
will be upheld. Truitt, 299 So. 3d at 104.
Our review of the record does not support AT& T' s contention that the action
of the Board of Appeals in refusing to reverse the action of the Building Official was
arbitrary, capricious, and/ or unreasonable. The Small Wireless Facilities Ordinance
specifically requires the City/Parish to " preserve the character of the neighborhoods
in which facilities are installed." Small Cell Wireless Ordinance Sec. 2: 380( B)( 5).
The Revocation Notice stated that the permit previously issued to AT& T was being
revoked pursuant to Section 105. 6 of the IBC. The City/Parish and Mosely Holdings
provided evidence that the permit issued to AT& T was issued in error, as it was
10
assumed that the relevant portion of Antioch Road was a publicly -owned road, rather
than one subject to " certain stipulations that prevent the issuance of this permit."
Mosely Holdings and the City/Parish assert that the Long Farm PUD required
that the utilities, including AT& T, be underground. The City/Parish has adopted a
Unified Development Code ( UDC), which establishes numerous types of zoning
districts, including a PUD. UDC Sections 8. 1, 8. 101, and 8. 216 ( 2014). 4 The PUD
map for Long Farm specifically states that phone service will be provided by " AT& T
via underground conduits and wiring." The UDC Section 8. 216 ( 2014), provides
with regards to PUDs as follows:
E. Relation to Zoning Districts. An approved Planned Unit
Development shall be considered to be a separate zoning district in
which the Development plan, as approved, establishes the restrictions
and regulations according to which Development shall occur, and may
depart from the normal procedures, standards, and other requirements
of the other sections of the
zoning ordinance and subdivision
regulations to the extent provided herein. Upon approval, the official
zoning map will be changed to indicate the area as Planned Unit
Development Concept ( or " PUD CONCEPT") ( for PUD only), or if
final approval is granted then as Planned Unit Development ( or
PUD"). Every approval of a Planned Unit Development ( PUD,
SPUD, or ISPUD) shall be considered an amendment to the zoning
ordinance. ( Emphasis added).
The donated property is subject to the PUD, which establishes the zoning
restrictions, and requires AT& T provide its services " via underground conduits and
wiring."
AT& T also claims that the PUD map refers to " phone" service being
underground and does not apply to " wireless" service. We note that the PUD map
refers to utilities and specifically lists electric service by Entergy, phone service by
AT& T, and cable service by Cox Communications all being provided via
4 Chapter 8 of the UDC was amended by City/Parish Ordinance No. 17892 in August 2020 after
the application for the permit was filed. Although the plan of government, which includes the
UDC, has not been filed in the record, this court may take judicial notice of its provisions under
the authority of La. R.S. 13: 3712( B). In re Fontenot, 2014- 0337 ( La. App. 1st Cir. 12/ 30/ 14),
2014 WL 7455199, at * 5 n.2 ( unpublished) ( citing City ofBaton Rouge v. Bethley, 2009- 1840 ( La.
App. 1st Cir. 10/ 29/ 10), 68 So. 3d 535, 539 n. 3, writ denied, 2011- 1884 ( La. 11/ 4/ 11), 75 So. 3d
927).
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underground conduits and wiring for Long Farm. We find that the PUD restrictions
required AT& T utilities be provided via underground conduit and wiring and
provided no exception for a wireless cell tower. Therefore, we agree that the
Building Official originally issued the permit in error as it conflicted with the PUD.
The Small Cell Wireless Ordinance Section 2: 382( D)(4) requires that "[ a]
small wireless facility shall comply with all applicable codes." Given the zoning
regulations established in the PUD, we cannot say that the Board of Appeals acted
arbitrarily or capriciously in determining that the Building Official issued the permit
to AT& T in error. Therefore, the Building Official had the authority to revoke the
erroneously issued permit. See Deer Chase, 2018 WL 1282815, at * 4- 5.
Declaration of Covenants, Conditions, and Restrictions for Long Farm
Subdivision
AT& T asserts that this court should recognize that the Long Farm Restrictions
require utilities to be placed underground " whenever reasonably possible." AT& T
further contends that it believed that the Revocation Notice was referring to the Long
Farm Restrictions, not the PUD, and that the PUD has no application to this permit.
While AT& T quotes to a section of the Long Farm Restrictions in both its petition
and its brief, the Long Farm Restrictions are not contained in the record before us.
The PUD map in the record contains the language that AT& T is required to provide
phone services " via underground conduits and wiring." An appellate court has no
authority to consider on appeal facts referred to in briefs that are outside the record.
La. C. C.P. art. 2164; Kott v. Kott, 2020- 0873 ( La. App. 1st Cir. 4/ 16/ 21), 324 So. 3d
165, 173. We are, therefore, unable to address the argument pertaining to the Long
Farm Restrictions referred to by AT& T that are not in the record.
Dedication of Antioch Road
AT& T claims that the Antioch location was donated or dedicated to the
City/Parish, and once completed, it became public property. On August 4, 2014,
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Mosely Holdings executed the Donation donating certain property to the City/Parish.
AT& T argues that the language of the Donation states that the parties to the
agreement " acknowledge that full ownership to the Donation Parcel comprising the
right of way is conveyed herein." ( Emphasis in original). AT& T contends that the
Donation Parcel to the City/Parish was made " without reserving any right of
ownership." AT& T further maintains that the Donation Parcel became public, and
therefore, the Building Official had no reason to revoke the permit.
AT& T directs this court' s attention to Anderson v. Police Jury of East
Feliciana Parish, 452 So. 2d 730 (La. App. 1 st Cir.), writ denied, 457 So. 2d 13 ( La.
1984), claiming that once a property is dedicated to a political subdivision, the
City/Parish, it becomes a public thing, not merely a private thing subject to public
use. In Anderson a servitude of passage was granted to the police jury over a piece
of property to establish a public road. The widow of Mr. Anderson later erected a
fence across the road in question, claiming that the police jury had abandoned the
road. Id. at 732. The issue before the court was whether the formal dedication of
the road was ever revoked, which the court found had not occurred. Therefore, the
court found the road to be a public thing. Id. at 735- 36.
Anderson is distinguishable from the present case. Anderson specifically
noted that while a formal dedication took place, for its purposes it did not need to
determine whether ownership was transferred or only a servitude. Id. at 734- 35.
Instead, the issue in Anderson was whether the formal dedication had been revoked.
Id. at 735- 36. Furthermore, Anderson did not involve a piece of property that was
already encumbered with certain zoning regulations.
By its terms, the Donation specifically transferred the Donation Parcel to the
City/Parish in full ownership. However, the Donation contained the following
restricting language:
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1. 2 Purpose. The donation and dedication of the Donation Parcel is
for the purpose of completing the extension of Antioch Road,
consisting of construction of a roadway and all necessary curbing,
medians, sidewalks and shoulder, butfor no other purpose.' ( Emphasis
added).
In addition to transferring the Donation Parcel, the Donation created and
granted sloping servitudes on either side of the roadway necessary for drainage.
With regard to these servitudes, the Donation required the following:
2. 2 Restrictions on Activities
a) Compliance with Laws. Each Party shall comply with all
federal, state and local laws, ordinances, rules and regulations
collectively, " Laws") that apply to the property owned by such
Party and the activities on such property, ....
As we set forth earlier, UDC Section 8. 216( E) ( 2014) provides that the approval of
a PUD " shall be considered an amendment to the zoning ordinance." The
presumption of validity attached to zoning ordinances is a well- established principle
of law in Louisiana. Freneaux v. Shelton, 2016- 0694 ( La. App. 1st Cir. 7/ 19/ 17),
2017 WL 3083662, at * 8 ( unpublished), writ denied, 2017- 1433 ( La. 11/ 6/ 17), 229
So. 3d 471; see Myers, 145 So. 3d at 327. Whether an ordinance bears the requisite
relationship to the health, safety, and welfare ofthe public is a factual question which
must be determined from the evidence in the record. If it appears appropriate and
well- founded concerns for the public could have been the motivation for the zoning
ordinance, it will be upheld. The interpretation of municipal authorities with respect
to a municipal zoning ordinance is entitled to great weight. Freneaux, 2017 WL
3083662, at * 8 ( citing Palermo Land Co., Inc. v. Planning Commission ofCalcasieu
Parish, 561 So. 2d 482, 492 ( La. 1990)). Additionally, once an area has been zoned
for a specified purpose, it is restricted in use to whatever use is set out in that
5 AT& T argues that the " no other purpose" clause in the Donation is not enforceable under the
general law and relies on State, Department of Transportation & Development v. Richardson, 453
So. 2d 572, 576 ( La. App. 1 st Cir. 1984). However, we have determined that the PUD restricted
the utilities to be underground without reliance on the language of the Donation. Therefore, we
pretermit any discussion as to the " no other purpose" clause in the Donation.
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classification. Terrebonne Parish Consolidated Government v. Carter, 2019- 1390
La. App. 1st Cir. 9/ 18/ 20), 313 So. 3d 1016, 1021. The use may only be changed
if the area is rezoned. Kirk v. Town of Westlake, 387 So. 2d 1157, 1159 ( La. 1980);
Lake Forest, Inc. v. Board ofZoning Adjustments of City ofNew Orleans, 487 So.
2d 133, 135 ( La. App. 4th Cir.), writ denied, 496 So. 2d 1030 ( La. 1986).
Similar to Carter, no evidence has been presented in the instant case that the
zoning regulations, contained in the PUD, were not valid or not applicable to the
Donation Parcel. Carter, 313 So. 3d at 1021 ( citing Myers, 145 So. 3d at 327 (" All
ordinances are presumed valid[.])"). Therefore, the City/Parish was required to
comply with the local zoning regulations when it received the Donation Parcel. The
Donation Parcel was encumbered with the zoning regulations contained in the PUD,
which required AT& T' s services to be provided " via underground conduits and
wiring." AT& T has directed this court to no cases that would allow the City/Parish
to avoid enforcing its own zoning regulations simply because the City/Parish became
the owner of the Donation Parcel.
Furthermore, the Donation contained other restricting language, including:
2. 5 Not a Public Grant; No Third Party Beneficiaries. The
Servitudes granted herein in favor of the City -Parish are not dedicated
to the public, but are private, personal rights of use granted solely for
the purposes and subject to the terms and conditions set forth in this
Donation. There are no third party beneficiaries to this Donation.
3. 5 No Other Rights Granted. Notwithstanding anything in this
Donation to the contrary, except as expressly granted herein, the Parties
intend that no vendor' s lien, and/ or privilege, mortgage, encumbrance,
burden, resolutory condition, right of recission or stipulation for the
benefit of the City -Parish or any third party shall be created by this
Donation and, should any be deemed to have been created, they are
hereby expressly released, renounced, waived and abandoned. ( Italics
added).
AT& T is a third -party, as it was not a party to the Donation between Mosely
Holdings and the City/Parish. The Donation specifically states that the servitudes
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are not dedicated to the public" and that there " are no third party beneficiaries to
this Donation."
Despite the Donation of the Antioch Road location to the City/Parish, the
Donation Parcel is still subject to the zoning regulations of that property, which
include the PUD. The PUD contains no exception for a wireless cell tower. AT& T
has offered no statutory or case law supporting its proposition that the zoning
regulations were altered by the Donation of the property or the granting of the
servitudes contained in the Donation. Therefore, we do not find that the
City/Parish' s enforcement of the PUD was arbitrary and capricious.
No Vested Property Rights in Permit
AT& T asserts that it obtained a vested property right in the permit since it had
already installed the cell tower relying on Dunn v. Parish ofJefferson, 256 So. 2d
664 ( La. App. 4th Cir.), writ denied, 258 So. 2d 382 ( La. 1972). Dunn forbids a
permit to be arbitrarily revoked, especially when the owner has incurred substantial
expense. Dunn, 256 So. 2d at 667. Later cases have declined to extend Dunn,
wherein the permit was properly issued, to cases where the permit was issued in
error. Pailet v. City ofNew Orleans, Department of Safety & Permits, 433 So. 2d
1091, 1095- 96 ( La. App. 4th Cir.), writ denied, 440 So. 2d 757 ( La. 1983); see
Brennan v. Board of Zoning Adjustments of City ofNew Orleans, 371 So. 2d 324,
326 ( La. App. 4th Cir. 1979) (" when a building permit is issued in error, the licensee
does not acquire a vested property right in such permit"). Furthermore, this court
has previously stated " that a party can acquire vested rights only in a validly issued
building permit." Deer Chase, 2018 WL 1282815, at * 7 ( emphasis in original).
In Deer Chase, 2018 WL 1282815, at * 4, this court extensively analyzed
cases in which a planning or zoning commission committed error and revoked an
approved building permit. This court noted that a planning commission has the right
to revoke an erroneously approved subdivision map in the exercise of its legislative
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authority. Id. Furthermore, after analyzing numerous cases from other circuits, this
court determined that a permit issued in error " does not vest an irrevocable right to
proceed under that permit contrary to subsequent action cancelling the permission
previous[ ly] granted." Id. (quoting Nassau Realty Co. v. City ofNew Orleans, 221
So. 2d 327, 330 ( La. App. 4th Cir. 1969)); see also 7004 St. Charles Avenue Corp.
v. City ofNew Orleans, 97- 0299 ( La. App. 4th Cir. 12/ 10/ 97), 704 So. 2d 909, 911,
writ denied, 98- 0036 ( La. 3/ 13/ 98), 712 So. 2d 881 ( An erroneously issued permit
does not gain legal status simply by virtue of its issuance.); Ellsworth v. City ofNew
Orleans, 2013- 0084 ( La. App. 4th Cir. 7/ 31/ 13), 120 So. 3d 897, 907; Cross v. City
ofNew Orleans, 446 So. 2d 1253, 1254 ( La. App. 4th Cir.), writ denied, 449 So. 2d
1359 ( La. 1984) ( A zoning authority has the right to cancel or revoke a building
permit erroneously issued as a result of a mistake of fact or law, either because the
permit did not comply with zoning regulations or because the permit was approved
based on a misrepresentation made by the property owner.); Summerchase Ltd.
Partnership I v. City of Gonzales, 970 F. Supp. 522, 534 ( M.D. La. 1997)
The instant case is distinguishable from Dunn because we have determined
that the permit was improperly issued. Additionally, AT& T' s reliance on the
issuance of the permit was unjustified because AT& T was aware prior to the
installation of the cell tower that the Antioch location was subject to certain
restrictions. Prior to the issuance of the permit, the City/Parish provided a letter
dated August 21, 2018, informing AT& T that the review of the permit did not
authorize a deviation from any " adopted/mandated codes, rules and regulations in
accordance with Title 8 of the Code of Ordinances" for the City/Parish.
Furthermore, the affidavit of Russell L. Mosely set forth that on November 17, 2018,
approximately thirteen months before the December 2019 installation, he gave a
contractor for AT& T verbal notice that the PUD required underground conduits and
wiring and that the cell tower was in violation of the PUD. Mr. Mosely also set forth
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by affidavit that Beau Barbera, an engineer employed by Mr. Mosely, gave verbal
notice on two occasions to AT& T that the cell tower violated the PUD. Mr. Barbera
also gave AT& T written notice in November 2018 that its service was required to
be underground.
Through her affidavit, Karen Douglas, a Senior Project Manager for MasTec
Network Solutions, the contractor for AT& T, stated that Mr. Mosely had stopped
the contractors from performing the work on Antioch Road. She thereafter spoke to
David Cobb, a Building Official for the City/Parish, who informed her that the cell
tower was located in the right-of-way belonging to the City/Parish and was not
subject to the restrictions asserted by Mr. Mosely. Ms. Douglas also asserted that
Mr. Cobb informed her that the cell tower' s location was proper. AT& T
subsequently modified the pole of the cell tower from a wooden one to a 40 -foot
metal pole, which was approved by Mr. Cobb and installed in December 2019. Mr.
Cobb countered in his affidavit that he had no recollection of informing Ms. Douglas
or any other person that the cell tower was not subject to the restrictions asserted by
Mr. Mosely or that the cell tower' s location was permitted. Furthermore, emails
between Mr. Cobb and AT& T representatives appear to confirm that Antioch Road
is a City/Parish street, but not that the cell tower can be located at a certain location.
Although the permit was issued on October 3, 2018, the cell tower was not installed
at the Antioch location until December 2019. AT& T was notified that the cell tower
violated the PUD. Furthermore, the Small Wireless Facilities Ordinance Section
2: 385( A) specifically prevents the creation of a property right as follows:
Authority Granted; No Property Right or Other Interest Created. A
permit from the City -Parish authorizes an applicant to undertake only
certain activities in accordance with this Chapter, and does not create a
property right or grant authority to the applicant to impinge upon the
rights of others who may already have an interest in the rights- of-way.
Therefore, we find AT& T had no reasonable justification in relying on the permit and
no vested property right in the permit. See Pailet, 433 So. 2d at 1095- 96.
IN
Alleged Violation of Law
AT& T further maintains that the revocation of the permit violated La. R.S.
9: 1253, La. R.S. 45: 781, 47 U.S. C. 253( a). Louisiana Revised Statute 9: 1253
provides:
Any road or street which becomes a public road or street under R.S.
48: 491( B) shall be subject to a servitude of public transportation and
utility running in favor of the parish or municipality in which the road
or street is located. This servitude shall extend directly above and
below the surface of the public road or street and shall grant to the
governing authority of the parish or municipality and any public utility
authorized by such governing authority the right to construct and
maintain all public utilities, including but not limited to, the right to lay
water lines, natural gas lines, sewerage lines, and electrical,
telecommunications, and cable television lines.
Louisiana Revised Statute 9: 1253 addresses the right of a municipality to authorize
installation of public utilities " directly above and below the surface of the public
road or street...." AT& T does not attempt to locate its cell tower either above or
below the surface of Antioch Road but in the right-of-way next to the roadway.
Furthermore, we agree with both the City/Parish and Mosely Holdings that La. R.S.
9: 1253 generally gives the City/Parish the authority to grant a servitude for public
utilities but does not mandate that AT& T be given the right to choose the placement
of the cell tower.
Louisiana Revised Statute 45: 781( A) provides, in part:
Corporations, domestic or foreign, formed for the purpose of
transmitting intelligence by telegraph or telephone or other system of
transmitting intelligence, may construct and maintain telegraph,
telephone or other lines necessary to transmit intelligence along all
public roads or public works, and along and parallel to any of the
railroads in the state, and along and over the waters of the state, if the
ordinary use of the roads, works, railroads, and waters are not
obstructed, and along the streets of any city, with the consent of the
city council or trustees. ( Emphasis added).
AT& T argues that it is entitled to install and operate its cell tower in the right-of-
way pursuant to La. R.S. 45: 781( A). The language of La. R.S. 45: 781( A) uses the
permissive word " may" and unambiguously requires the consent of the city council
1LI
to place utilities in the right-of-way. AT& T also maintains that there are other
above -ground utilities at the Antioch Road location and these permits have not been
revoked.
Other than photographs reflecting the presence of a power transformer in
proximity to the wireless cell tower, the record is devoid of facts concerning the
placement of other above ground utilities and/ or their use in support of the
underground utility requirement. The City/Parish in the present case revoked the
permit when it was determined that the Antioch Road location was burdened by
certain restrictions. The revocation did not violate La. R.S. 45: 781( A).
AT& T also asserts that 47 U.S. C. § 253( a) prevents the limitation of its right
to use the right-of-way. 47 U.S. C. § 253( a) provides:
No State or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate telecommunications
service.
However, AT& T does not address 47 U.S. C. § 253( c), which provides:
Nothing in this section affects the authority of a State or local
government to manage the public rights- of-way or to require fair and
reasonable compensation from telecommunications providers, on a
competitively neutral and nondiscriminatory basis, for use of public
rights-of-way on a nondiscriminatory basis, if the compensation
required is publicly disclosed by such government.
47 U.S. C. § 253( c) clearly provides the City/Parish the right to manage the public
right- of-way. Furthermore, as noted by Mosely Holdings, negotiations did take
place with AT& T to attempt to relocate the cell tower to other nearby locations.
We find that the Building Official did not violate any law in revoking the
permit that was granted based upon the failure to recognize that the PUD restricted
AT& T to underground utilities. Furthermore, the law allows the City/Parish the
right to manage the right-of-way and allows a Building Official to revoke a permit
issued in error. 2015 IBC Sec. 105. 6. Therefore, the action of the Board of Appeals
in affirming the revocation of the permit was neither arbitrary nor capricious.
NEI
CONCLUSION
For the reasons set forth above, the October 20, 2020 judgment of the district
court denying the Petition for Judicial Review and Injunctive Relief and dismissing
New Cingular Wireless, PCS, LLC d/ b/ a AT& T Mobility' s claims is affirmed. All
costs are assessed against New Cingular Wireless, PCS, LLC d/b/ a AT& T Mobility.
AFFIRMED.
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