Appellate Court Reverses District Judge’s Ruling Allowing Borrow Pit To Continue To Operate Without Parish Approval
Last week the Fifth Circuit Court of Appeal unanimously reversed a 23rd Judicial District Judge’s ruling that allowed the owners of “Big Shake Pit” borrow pit to continue to operate without having to garner permits from the Parish Planning Commission.
The Appellate Court’s ruling could result in the Parish issuing a “Stop Work” order as the Parish and its legal adviser are currently looking into how to proceed.
The owners of Big Shake Pit do have legal avenues they could explore as they have 15 days from the date of the ruling to ask the Fifth Circuit to reconsider the ruling, they have 30 days to file a Writ with the Louisiana Supreme Court and ask the Court to look at the Fifth Circuit’s ruling, and/or they can begin the process of going through the St. James Parish Planning Commission’s process.
St. James Parish Government and the owners of the Big Shake Pit borrow pit have been in a legal dispute that centers around the St. James Parish’s Land Use Ordinance/Plan and whether the newest owners of the property in question should comply with the rules and regulations of the Parish’s Land Use Plan, which the Parish argues requires Parish approval.
The following is a history of Big Shake Pit and some of the facts of the case:
*In 1989, Yolande Schexnayder & Sons (YSS) was incorporated as a sugarcane farm. YSS was the original owners of the property in question.
*March of 2008: YSS enters into a purchase agreement with Louisiana Earth Corps (LEC) and grants LEC the rights to market, mine and sell clay from roughly 100 acres of the property. At this time the property is named “Big Shake Pit”.
Also at this time, LEC conducted soil boring and analyses and identified high quality clay suited for use in levee construction and LEC applied for a contract with the US Army Corps of Engineers to sell clay to be used in the post-Katrina Hurricane Storm Damage Risk Reduction System (HSDRRS).
*October of 2009: The Corps accepts Big Shake Pit as a suitable borrow pit to supply clay for levee systems and several pits/cells were dug, some as deep as 30 feet, and clay was barged and trucked to supply the HSDRRS with clay.
Also, from 2009 to 2012 roughly 677,000 tons of clay was excavated from the Big Shake Pit, and the contract between YSS and LEC remained in affect until December of 2020.
It should also be noted that some top soil was excavated from Big Shake in 2014, but dirt work ceased shortly thereafter and no earthen material has been removed from the property since 2014 and the land has been used to grow soy beans and sugarcane.
*April of 2014: St. James Parish adopts its Land Use Plan/Ordinance, which designates certain uses for land throughout the Parish, and the Big Shake property in question is designated as Agricultural/Residential.
*December of 2020, St. James Construction Materials, LLC (SJCM) purchases Big Shake from YSS, which included roughly 490 acres of land. With the new purchase, Big Shake increased more than 370 acres as the original land planned to be worked as a borrow pit was roughly 100 acres.
All-in-all, SJCM plans to excavate, sell and deliver up to 9 million cubic yards (estimated 500,000 truck loads) of clay material for U.S. Army Corps of Engineer levee projects and SJCM is actively seeking a contract with the Corps to supply clay to the West Shore Lake Pontchartrain Hurricane Risk Reduction Project, which was funded by Congress in 2018 and remains in the Army Corps of Engineer’s design phase.
*In January of 2021, and to prepare to revamp the property as a borrow pit while Big Shake Pit working to secure a contract with the West Shore Lake Pontchartrain Project, SJCM applied for Parish issued permits to connect water and electrical service to the property.
At that time the Parish advised SJCM in order to use the property as a borrow pit the new owner would have to follow the Parish’s Land Use Plan, which requires Planning Commission and Parish Council approval in order to receive necessary utility permits.
In the court documents filed in District Court and on Appeal, SJCM has and continues to argue it should be considered a “nonconformity” because it was operating Big Shake before the Land Use Plan was enacted, and although the Land Use Plan now designated the property for agricultural/residential use, Big Shake is essentially grandfathered from the Land Use Plan.
The Parish’s position is since no clay material has been removed from Big Shake since 2012 and that the land was used to grow sugarcane, which does comply with the agricultural/residential designation under the Land Use Plan, that Big Shake is not entitled to receive nonconformity status.
The Parish also points to the Land Use Ordinance where it states, “A nonconformity that discontinues operation or use for more than six continuous months shall lose its status as a nonconformity, and shall thereafter be treated as a new use subject to the provisions of this section.”
The Parish argues Big Shake Pit has no claim to the status of a nonconformity under the Land Use Plan because earth mining did not occur for a period of 6 months or longer, and earth mining was not a use of land existing as of the effective date of the Land Use Ordinance.
So, when the Parish refused to award utility permits, SJCM filed suit in District Court and asked a Judge to issue a preliminary injunction to prevent the Parish from requiring Planning Commission or Parish Council approval before issuing the permits.
In SJCM’s Petition for Preliminary Injunction, attorneys argue several points as reasons Judge Turner should allow the company to proceed and the following are some of the main points:
*SJCM argued the Big Shake Pit has, since before 2013 and since the Land Use Plan was adopted in 2014, never ceased operating as a borrow pit.
The petition points to many other activities other than actual mining of clay that coincide with running a borrow pit business and that many of these activities have been ongoing and have never ceased for more than 6 months.
These activities include: soil boring, sampling and testing of soil for suitability for various projects, maintaining cells where excavation has already occurred to prevent collapse, creating and maintaining roads as needed for ingress and egress, keeping property in a state of compliance with applicable regulatory requirements, clearing trees and bushes, removing surface clay and stockpiling materials in advance of levee and other large scale construction projects, and posting and maintaining signs on the property advertising the availability of earthen materials for sale from Big Shake.
*The petition argued that although no clay was mined and sold for many years, the Big Shake has never ceased due to the constant marketing of the property.
*The petition also states SJCM has actively pursued certification of the property as a clay borrow source for the West Shore Levee Project, which would be a significant business opportunity, especially since Big Shake is in such close proximity of the proposed project in neighboring St. John Parish.
SJCM’s court documents present the argument that should Judge Turner side with the Parish it would cause irreparable harm because it would prevent the U.S. Army Corps of Engineers’ approval of Big Shake as a clay borrow source on the West Lakeshore Lake Pontchartrain Levee Project or result in revocation of the approval; irreparably damage the reputation of Big Shake developed over the last decade as a commercial clay source for large industrial and public projects; and, destroy the competitive advantage Big Shake enjoys due to its proximity to the West Lakeshore Lake Pontchartrain Levee Project sites.
So, on March 23rd, all parties involved appeared in Judge Alvin Turner’s Court and held a hearing where both sides argued their cases and in the end Judge Turner, on April 7th, ruled in SJCM’s favor and granted a preliminary injunction that prevented the Parish from not only requiring Planning Commission approval, but from taking any action to slow down or prevent any work on the Big Shake property.
Following Judge Turner’s ruling, the Parish appealed to the Fifth Circuit Court of Appeal and argued Judge Turner abused his discretion and erred in his ruling. The legal errors the Parish points to in court documents include:
1. “Use of land” as stated in the Ordinance.
The Parish argues “A use of land existing as of the effective date of the Ordinance” is the basis of a nonconformity status.
The Parish argued the trial court committed legal error by considering activities that occurred elsewhere and that did not involve the physical use of land as establishing and continuing Big Shake’s nonconformity status.
2. On April 21, 2014 (the effective date of the Ordinance), the only “use of land” on the Big Shake property was agricultural. Borrow pit operations had ceased more than a year earlier, and it was an error for the trial court to conclude that the land was used as a borrow pit as of April 21, 2014.
3. A nonconformity that discontinues operation or use for more than six months, loses its status as a nonconformity.
The trial court incorrectly concluded that the Big Shake property had been in continuous use as a borrow pit.
4. The trial court misinterpreted the nonconformity subsection of the Land Use Ordinance as granting nonconformities a blanket exemption from other provisions of the Ordinance.
As a matter of law, the nonconformity subsection merely grants limited permission for a preexisting use to continue “as is” under restricted circumstances; it does not exempt the nonconformity, or subsequent, different uses associated with the nonconformity, from compliance with other provisions of the Ordinance.
All Parties met at the Fifth Circuit in February and argued their case and last week the three-judge panel issued and released their unanimous ruling reversing Judge Turner.
The Fifth Circuit Judges, in their 21-page ruling, agreed with the Parish that Judge Turner misinterpreted the Parish Land Use Ordinance on several occasions in awarding the preliminary injunction, which prevented the Parish from requiring SJCM to appear in front of the Planning Commission.
The Appellate judges, after taking an in-depth look at the Parish Land Use Ordinance, pointed out several issues with Judge Turner’s ruling.
The ruling pointed to the Land Use Plan where it states that any nonresidential development exceeding 10,000 square feet of building area or sites three acres or more shall not be issued a building permit until approved by the Planning Commission.
“If we apply the ordinance as interpreted by the trial court, however, a landowner or operator of a piece of property three acres or larger that is designated agricultural but seeks to continue to use the property for an industrial or other nonconforming use, would not have to seek Parish approval to operate in a manner not in conformity with the land use designation and, thus, would be subject to less governmental review than a property in use as designated pursuant to the Land Use Plan. We find this interpretation leads to absurd results and does not reasonably comport with the Parish’s intent set forth in the Land Use Plan.”
The three-judge panel also agreed with the Parish’s argument that Big Shake discontinued operation or use for more than six continuous months and therefore lost its status as a nonconformity and should be treated as a new use subject to the Land Use Ordinance.
Lastly, one of the three-judge panel, Judge Marc Johnson, issues a concurring opinion.
Judge Johnson said he agreed with the majority opinion that the trial court abused its discretion in issuing the preliminary injunction, but he wanted to separately write on the issue of whether SJCM proved any irreparable injury or loss had injunction not been put in place to prevent the Parish from requiring SJCM to appear before the Planning Commission.
In his concurring ruling, Judge Johnson writes, “An injunction is a harsh, drastic, and extraordinary remedy, and should only issue where the mover is threatened with irreparable loss or injury without an adequate remedy at law. “Irreparable injury” means the moving party cannot be adequately compensated in money damages for his injury or suffers injuries, which cannot be measured by pecuniary standards.”
“After reviewing SJCM’s arguments, I summarize its position as follows: if it is required to undergo the pre-approval process set forth in the Ordinance by the Parish, it will miss the opportunity and its edge to obtain a contract with the U.S. Army Corps of Engineers for the West Lakeshore Lake Pontchartrain Levee Project, and sustain damage to its reputation as a result of this loss. The alleged losses can be measured by pecuniary standards, irreparable loss or injury without an adequate remedy.
Therefore, SJCM failed to prove irreparable loss or injury without an adequate remedy.
Time will tell what the next move will be.