Foil rules against WalmartFeb 15th, 2012 | By William Dilella | Category: news, top story
Ruling is only latest stage of the game, Moretco team says
Judge Frank Foil, who presided over the early January hearing for Moretco v. Plaquemines Parish Council et al, rendered his decision on February 8. In his judgment, Foil sided with the Parish’s argument that Moretco was not entitled to any judicial relief for their permit, as it has not gone though every possible authority before coming to the Court.
Moretco first entered into an agreement for the Belle Chasse property in 2008. As the company prepared for the final permit, the Parish Council concurrently issued updates to the zoning code, requiring additional approval from a Public Urban Development Board, or PUD, for a structure larger than 25,000 square-feet.
As the permit was not completed before the new zoning ordinance took effect, the Parish was going to apply the new ordinance to Moretco’s permit packet. Moretco argued that the prior code should apply to the permit, as their packet was submitted prior to the Council passing the ordinance in January 2011.
“Moretco filed an application for a building permit,” states the judgment composed by Judge Frank Foil. “The evidence shows that, at the time the application was filed, Moretco had heard about and suspected that a new moratorium ordinance was going to be filed by Parish Councilman Hinkley.”
Following that application, Moretco and the Parish failed to reach any agreement about the proposed shopping complex, which at over 300,000 square-feet would definitely fall under the parameters of PUD if the new ordinance were applied to the permit.
“Moretco argues [before the Court] that the above ordinances cannot be applied to Moretco because it filed its permit applications, civil engineering plans, and architectural drawings before the ordinances were enacted and therefore the retroactive provision was not valid,” Judge Foil reviewed in his final judgment.
The case surrounding Moretco’s assertion, according to Judge Foil, didn’t add up because Moretco has yet to pursue the full extent of the process. Moretco did not go before the Council for a decision, as outlined by the new ordinances, before they made their claim in Court that the Parish is acting arbitrarily when it comes to the intended Walmart center.
“Since filing its permit application on January 10, 2011, Moretco has not sought council approval under the moratorium ordinance or the zoning ordinance,” Judge Foil wrote. “Testimony of Moretco officials at the trial indicated that Moretco did not speak up at the Parish Council meetings or at the neighborhood meeting, because they felt that it would do no good.”
Judge Foil went on to write, “A reading of the moratorium and zoning ordinances in this case does not indicate an automatic arbitrary or capricious conduct on the part of the Parish Council. There could possibly be such conduct in the practical application of the ordinances by Parish officials.
“However, both ordinances provide for a final review by the Parish Council prior to any final action being taken,” Judge Foil continued. “But Moretco has not yet submitted its proposal to the Parish Council for final action as is required by the ordinances. Accordingly, Moretco has not exhausted all administrative remedies.”
And for that reason, Foil said, the case being argued by Moretco is premature and assumes a result before even facing the decision of the Council.
The judgment also addressed the assertion by Moretco’s legal team that there was a racial prejudice motivating the attempts to block Walmart’s development. In this matter, Judge Foil found that the Parish had supplied sufficient alternative concerns from the Parish—regarding local infrastructure and adverse effects to the community—that the one unsubstantiated off-the-record remark was not detrimental to Moretco’s case as a whole.
“There were other factors and considerations as to whether or not this development should be permitted,” Judge Foil wrote. “There are fears of serious traffic problems and drainage problems. There is also considerable opposition from surrounding homeowners, as well as fears that this development will harm other smaller businesses in the area.”
Neither the Parish’s attorneys, nor members of the Parish Council were able to comment on the future of the case at this time.
Moretco’s attorney, James Garner, has said he and his client are obviously dissatisfied with the decision.
“It think it’s wrong,” Garner said. “No offense to Judge Foil, but I think he missed it.”
Garner and his team have begun meeting with Moretco on the next phase of the Court proceedings.
“Next stage is probably an appeal,” Garner said. “Whatever Judge Foil decided, this was going to the next stage, and it will probably end up in Louisiana Supreme Court.”
Story by William Dilella