Trapped in the Middle of Rouzan
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,
seven-year struggle to have the Metro Council live by the laws it has written. When the Hoovers and Welches found themselves enclosed by Tommy Spinosa’s Rouzan development, they found that even their right to come and go from their own home was in question, as Spinosa blocked the servitude of passage they own. In February, when the 1st Circuit Court of
Appeal ruled in their favor, recognized their servitude and declared Rouzan illegal, it looked like a new day. Now it’s clear that nothing has really changed.
Editor’s Note: Danny and Janet Hoover live in a beautiful home that’s straight out of rural Louisiana. Flowers are blooming. Rows of strawberries are ready for picking. The old barn and the milk shed form part of an idyllic setting. Yet, for the Hoovers and their seven children, the last seven years have been a nightmare. A development, which the courts have ruled illegal, is slowly surrounding them. Their access to the street has been cut off. Their supply of natural gas has been cut off. They’ve faced a long and expensive legal battle. All along, they’ve asked only two things: 1) That the developer live within the law, and 2) that their 30-foot wide servitude to Glasgow Avenue be respected. They say the Metro Council and the developer have created the problem, and they expect them to fix it.
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 totalling 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 want to live on the property and have no interest to sell.
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.
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 not only had 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.
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 proposed TND. The Metro Council approved Spinosa’s application, 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 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 development, which he named Rouzan, 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 Janice Clark of the 19th Judicial District Court. Clark repeatedly ruled against the two property owners, 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.
Recently, the Baton Rouge Fire Department received a call from the Hoovers but the unit refused to use the 10-foot wide road as inadequate and unsafe for their equipment.
St. Amant asked, “How can the Hoovers and the Welch’s get adequate fire protection? What if the Hoovers or the Welch’s 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 for almost nine months.
Finally, this February, after all of Judge Clark’s adverse rulings for the past six years, Louisiana’s 1st Circuit Court of Appeal handed the Hoover and Welch families a big victory. A unanimous court overturned all of her adverse 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 such that the UDC requirements are applicable. Furthermore… we find the existent servitude of passage prevents 2590 Associates 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 inconvenient 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 is that the zoning for Rouzan is now A-1. Nevertheless, last week, construction 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 last Wednesday 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 his client of a property right without just compensation, some became agitated.
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 appear 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.
Then last Friday, 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 Councilman 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. “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.”
The Metro Council will meet at 4:30 p.m. Wednesday, May 14 in the Council Chamber, 222 St. Louis St.