Judge Janice Clark Ignores Directives From 1st Circuit on Rouzan Project

In the legal system today, getting justice is slow, difficult, and expensive.  That is one of the lessons Danny Hoover and Dr. Bob Welch have learned during a lonely, 10-year struggle to have their property rights respected under Louisiana law in a battle against Rouzan developer Tommy Spinosa.
Now the Hoover and Welch families have won a big victory in Louisiana’s 1st Circuit Court of Appeal — only to see a perhaps more powerful judge, District Judge Janice Clark, ignore the orders of the 1st Circuit.
In April, the 1st Circuit Court of Appeal overturned a long series of decisions by Clark favoring Spinoza. The 1st Circult ruled the Metro Council acted illegally in repeatedly bowing to Spinoza’s demands and violating the property rights
of the Hoover and Welch families.
The Appeal Court directed Clark to “expeditiously” determine the extent of the damages suffered by Danny Hoover and Dr. Bob Welch.
The Appeal Court also ordered Judge Clark to determine an “expeditious” time period for Spinoza’s companies to restore the property rights of Hoover and Welch. That means tearing down several houses Spinoza has built on the 30-foot servitude the Hoovers and Welches own on the property.
The 1st Circuit issued its orders for Clark to move expeditiously April 26 but so far she has done nothing to comply. In fact, in a hearing Monday Clark ignored the 1st Circuit’s order and issued rulings that could delay compliance for years.
Damages in the case could amount to $4 to $10 million. Not only Spinoza but the City-Parish government could have to pay. The Metro Council repeatedly granted permits to Spinoza and ignored the families’ property rights, even though the Hoovers spelled out in public meetings how Spinoza was violating their rights. Now the Hoovers and Welches may have no choice but to ask the 1st Circuit to hold Clark in contempt of court. That could eventually cause her to be removed from the bench.On April 24, 1992, Mary Bordelon Ford drafted a will providing for the disposal of her estate upon her death.  Mrs. Ford’s  husband Ralph had passed away in 1988, and they had no children.
One of the most important things in Mrs. Ford’s estate was 124 acres of land at the corner of Perkins Road and Glasgow Avenue.
In the will, she provided that three tracts of land totaling five acres located near the center of the property would be given as a “remunerative donation” to Danny Hoover and Dr. Bob Welch in payment for long years of service to her.
Tract A, consisting of her residence and 3.7 acres of land, were left to Dr. Welch.
Tract B, consisting of a home and .7 acre were left to Danny Hoover.  He and his wife Janet had lived on the property since 1978 and in the house since 1983.
Tract C, consisting of a barn and .6 acre, were left jointly to Hoover and Welch.
Mrs. Ford left explicit instructions that Tracts A, B, and C would have a 30-foot wide Private Access Servitude along a particular route to allow unimpeded access to and from Glasgow Avenue.  She provided the exact location of the servitude and said, “DEDICATION: The 30’ Private Access Servitude shown hereon is hereby dedicated as a private means of access to Tracts A, B, & C.  No trees, shrubs, or plants may be planted on nor shall any buildings, fences or other improvements be constructed within or over said servitude so as to prevent or unreasonably interfere with the purpose for which the servitude is granted.  The City-Parish has no responsibility for the maintenance of this servitude.”
Mrs. Ford provided that the remaining 119 acres would be left to her heirs, most of whom lived out of state. Her attorney was Gregory Pletsch of Baton Rouge.  One of Mrs. Ford’s caregivers was the sister of developer Tommy Spinosa.
Mrs. Ford died on Oct. 24, 2003.
After her death, Spinosa began negotiations for the purchase of the property.  In court documents, Pletsch stated that he had tried to convince Mrs. Ford not to divide the property.  He said he warned her that it could lessen the value of the property.  After her death, he approached Hoover and Welch to see if they would consider accepting cash instead of Tracts A, B, and C.  They declined because they wanted to live on the property and had no interest in selling.
Local developer Tommy Spinosa entered into an agreement with the other heirs to purchase 109 acres for $13.1 million.  He entered into a second agreement to purchase 4.5 acres located between the Hoover-Welch properties and Glasgow Avenue.  The heirs and Spinosa agreed that the sale would not go through until the heirs were able to free the property of the servitude belonging to Danny Hoover and Dr. Welch.
Eventually, Spinosa purchased the two tracts without that condition.
By 2008, Hoover and Welch filed suit to have themselves placed in possession of their properties.  Ironically, by then, the other heirs had not only been placed in possession of their 119 acres but had already sold it to Spinosa.
On January 23, 2008, Spinosa appeared before the Metro Council to ask that his property be rezoned from A-1 Single Family Residential to TND, or Traditional Neighborhood Development, a classification that allows a mixture of residential and commercial uses.  It also permits construction of homes on lots that are much smaller than those permitted in A-1 residential.  The development was to be called Rouzan.
Under East Baton Rouge Parish ordinances, one of the key requirements of a TND is that the developer have complete and total ownership or control over all the property within the TND.
However, the Metro Council approved Spinosa’s application for  Rouzan, despite the fact that he did not own Tracts A, B, and C, which were within the boundaries of the TND, and despite the fact that Spinosa’s property was burdened with the servitude of passage granted to Tracts A, B, and C against his property, as provided in Mrs. Ford’s will.  A servitude is a right in real property.
One week later, on Jan. 30, 2008, Baton Rouge attorney Alex St. Amant filed suit on behalf of Danny Hoover and Dr. Bob Welch, seeking a declaratory judgment that the ordinance approving Spinosa’s Rouzan development violated the United Development Code (UDC) and was an abuse of the Council’s discretion.  The suit was Danny Hoover and Bob Welch v. East Baton Rouge Parish Metropolitan Council.  Spinosa’s company, 2590 Associates, intervened as property owner.
The case was assigned to Judge Wilson Fields. At the same time, the succession  proceedings  were being heard in Judge Clark’s court where they were heavily litigated. Although Mrs. Ford died in 2003, Welch and Hoover did not get a judgment of possession until 2009.  A companion suit filed in 2012, Welch and Hoover v. Planning Commission, et al was assigned to Judge Janice Clark.  Clark repeatedly ruled against the two property owners, the Hoover and Welch families, and the case dragged on.  The Metro Council filed several amendments to the UDC “with the intent of rendering valid the prior alleged invalidities.”
Meanwhile, Spinosa moved full speed ahead with the Rouzan development.  For the Hoovers and Welches, one of the most disturbing things was Spinosa’s efforts to deny them the right to use their servitude.
Despite Mrs. Ford’s explicit instructions that “no trees, shrubs, or plants may be planted on nor shall any buildings, fences or other improvements be constructed within or over said servitude so as to prevent or unreasonably interfere with the purpose for which the servitude is granted,” Spinosa proceeded to violate all of those requirements.
The servitude is 30 feet wide and runs directly through Hoover’s and Spinosa’s property to Glasgow Avenue.  Yet, within that servitude, Spinosa has constructed a building, fences, curbs, light poles, and various other obstructions.
Instead of recognizing the servitude, Spinosa has constructed and dedicated to the City-Parish a winding 10-foot wide road.  It does not follow the 30-foot wide servitude and it does not connect to Tract C.
Three years ago, the Baton Rouge Fire Department received a call from the Hoovers but the firefighters refused to use the 10-foot wide road because it was  inadequate and unsafe for their equipment.
The attorney for Danny Hoover and Dr. Bob Welch, Alex St. Amant, asked, “How can the Hoovers and the Welch’s get adequate fire protection?  What if the Hoovers or the Welches wanted to develop their property.  How would people get access to it?  They own a 30-foot servitude but Spinsosa is blocking it.”
At one point, the developer cut off natural gas to the Hoovers and Welches, and they were without natural gas for almost nine months.
Finally, in February 2014, despite Judge Clark’s delays and adverse rulings for the previous six years, Louisiana’s 1st Circuit Court of Appeal handed the Hoover and Welch families a big victory.  A unanimous court overturned all of Clark’s decisions and gave the plaintiffs a strong judgment in their favor.
In the decision, the judges said, “We agree with the plaintiffs that their three lots are ‘included within  the TND district,’ and as such that the UDC requirements are applicable.  Furthermore… we find the existent servitude of passage prevents 2590 Associates [Spinosa’s company] from having the complete, unified, and legal control necessary for compliance with the UDC.”
“Plaintiffs also contend that because their property is within the boundaries of the development, the UDC required their consent to the zoning — and that requirement was violated, as the plaintiffs never consented… We agree with the plaintiffs.”
“…The right of passage herein is an affirmative servitude, giving the plaintiffs, as owners of the dominant estates, the right [emphasis by the court] to do certain things on certain Rouzan property, comprising the servient estate… Given that the servitude of passage in this matter is conventional, the use and extent of such servitudes are regulated by the title by which they were created (i.e., Mrs. Ford’s will and dedication)… Pursuant to Louisiana Civil Code art. 748, the owner of the servient estate may do nothing to diminish or make more incon-
venient the use of the servitude.”
“Accordingly, we render a declaratory judgment in favor of Bob Welch and Daniel Hoover and against East Baton Rouge Parish Metropolitan Council and intervenor, 2590 Associates, finding that Ordinance 14280 is invalid as the UDC requirement that 2590 Associates have complete control of all the land included in the TND has not been met.”
The court assessed all court costs and costs of appeal against the EBR Metropolitan Council and 2590 Associates, LLC.
The effect of the decision was that the zoning for Rouzan is now A-1.  Nevertheless, not long after the 2014 ruling, Spinoza’s company was proceeding to lay the foundation on a new home in the development on a lot that would not meet A-1 standards.
In spite of the 1st Circuit decision, the Metro Council moved forward to ratify Spinosa’s actions at Rouzan, sparking one of the most contentious Council meetings of 2014.  The Council considered two ordinances on the subject.  One would ostensibly change the requirement that a developer have complete ownership or control of everything in the proposed TND.  A second ordinance would reauthorize Rouzan as a valid TND.
Attorney Alex St. Amant told the Council their action would be illegal because the matter had not been properly advertised.  He also said the developer cannot propose to make the same change twice within one year.
St. Amant was particularly concerned that the map of Rouzan attached to Spinosa’s concept plan omitted the servitude of passage owned by Hoover and Welch.
He said that the adoption of the map by the Council could be interpreted as an attempt to take away the property right in that servitude that his clients own.  When he told the Council they could be subject to personal liability for depriving a citizen of a property right without just compensation, some became agitated.
Then-Mayor Pro-Tem Chandler Loupe asked St. Amant, “What is your end game?  What do you want?”  He expressed concern about 40 homeowners in the development who can’t get title insurance.
St. Amant, who later said there only appeared to be 19 homes in the development and many have never been sold, said it is the Metro Council and developer Spinosa who have done wrong, and they need to correct it.  He said, “My clients haven’t done anything wrong.  They and the homeowners are the victims here, and the people who caused the problem — the developer and the Metro Council — need to make things right.”
Danny Hoover told the Metro Council, “You need to clean up the mess you created before you dig your hole deeper.  When you’re in a hole, stop digging!  Compensate those who’ve been damaged and stop trying to blame other people.”
Janet Hoover told the Metro Council, “You’ve caused this problem.  You’ve done this.”
At the end of the hearing, the Council unanimously passed both ordinances, and St. Amant and the Hoovers left.  After they left, the Council realized there were problems with what they had done, reconsidered their actions, and set another hearing on May 14, 2014.
Then Councilman Trae Welch asked to meet with the Hoovers.  He spent nearly two hours touring the property and asking questions.
Janet Hoover expressed her frustration at the process.  “The Council is unprepared,” she said. “Our whole life is at stake and they give us three minutes to explain.  Then they don’t do their homework.  It’s very frustrating and wrong.”
She and her husband Danny expressed appreciation for Council man Welch’s visit, saying he is the first Council member to come out and see the situation first-hand.
St. Amant said he can’t believe a single Council member read the opinion of the 1st Circuit Court of Appeal.  “They couldn’t have read the opinion, and then taken the action they took,” he said.
“Instead of doing everything they could to facilitate the irresponsible actions of the developer, they should be requiring him to fix what’s broken.  They’re not requiring him to do anything.  They’re just letting him continue to run roughshod,” he said.
St. Amant questioned why the Metro Council would want to change the ordinance requiring that the developer of a TND have total ownership or control of all the property in the development.  “Why would you want to change that?  What would be the alternative?  You can see by this case the extreme injustices that can occur when a developer attempts to control property he does not own.”
St. Amant said the ordinance the Council first passed and then reconsidered doesn’t do what they think.  He said, “The new language says this: ‘Ownership and Control.  All land proposed to be included in the TND zoning district shall be owned by or be under the control of the applicant for the purpose of seeking the TND zoning designation.’  How is that any different from current law?  The developer does not meet that standard.”
When the Council did meet, they once again approved language Spinoza wanted, ratifying his illegal actions.
Then on April 26, 2017, the First Circuit Court of Appeal once again ruled in favor of the Hoover and Welch families, this time with a strongly-worded decision ordering District Judge Janice Clark to expeditiously hold a hearing to calculate the damages that were sustained by the Hoover and Welch families. One attorney predicted the amount would be somewhere between $4 million and $10 million.
The Court of Appeal also ordered Spinoza’s company to respect the Hoover’s and Welch’s 30-foot servitude. That means tearing all posts, walls, structures, and buildings that impinge on that servitude.
So now the ball is once again in the court of District Judge Janice Clark. The Court of Appeal decision came down April 26, ordering an “expeditious” hearing to determine the amount of the damages. But once again, Clark seems in no hurry to comply with the Court of Appeal. As of mid-June 2017, she has still not set a hearing date to determine the amount of damages.
Meanwhile, the Metro Council has appealed the Court of Appeal decision to the Louisiana Supreme Court, where the Metro Council’s chances of success seem small.
Today, Louisiana law and a multitude of Court of Appeal decisions appear to be on the side of the Hoover and Welch families.
In any normal case, this controversary would have been settled.
But one attorney familiar with the case and with Spinoza said, “He will continue to file endless appeals and try to bounce the case back to Judge Clark as often as he can. He has no intention of paying anybody anything or stopping what he’s doing. The Hoover and Welch families could face another five or 10 years of legal shenanigans. The only solution is for the Court of Appeal or the Supreme Court to take this case away from Clark and bring the thing to a close.  Otherwise, the Hoovers and Welches may not live long enough to see justice done.”

Twitter Digg Delicious Stumbleupon Technorati Facebook Email

No comments yet... Be the first to leave a reply!