Stephanie Riegel: Passion trumps law in Heritage Oaks debate

Where do the rights of one property owner begin and those of another end?

It’s a fundamental question that gets played out across America every day. But in Baton Rouge, a rapidly growing city in a state preoccupied with property rights, the tenor of the debate is frequently rancorous and often governed by passion over principle.

The latest such example is the controversy over Heritage Oaks, a subdivision proposed for a 15-acre parcel on Highland Road near Pecue Lane. Local developer Larry Jordan wants to develop 39 single-family homes on the site. (He originally wanted to build 46 but has since revised plans downward.) That amounts to about three houses per acre. Admittedly, the lots will be smaller than in some subdivisions in that area, averaging around 15,000 square feet with lot lines of between 50 and 100 feet. But the homes will be upscale, and the development will include several 200-year-old live oak trees.

Though Jordan promises a quality project, residents of the surrounding neighborhood aren’t buying it. They’re concerned about drainage and flooding. They’re worried about increased traffic. Most of all, though, they’re bothered by the density and size of proposed homes, which they say are not in keeping with the surrounding area and could decrease their property values.

They make a passionate case, but lost in their eloquence are some facts. For starters, the proposed subdivision is legally allowed under the current zoning designation for that area, which is rural. Contrary to common misconception, a rurally zoned area does not requires large spacious lots but, in fact, allows for up to seven units per acre, or lots of just 6,000 square feet. That’s more than twice the density allowed in a neighborhood zoned for single-family residential.

Second, Heritage Oaks is not seeking a zoning waiver or a zoning change. The developers are simply asking to develop the property within the parameters of the existing zoning code.

Third, Heritage Oaks was OK’d by the Department of Public Works, though there were some concerns about the location of the entrance to the subdivision and its proximity to Pecue Lane. The developers have since revised their plans and changed the location of the entranceway.

Fourth, there aren’t any wetlands issues on the site or infrastructure problems.

In other words, the project meets the standards outlined by law, which is why the Planning Commission staff—after reviewing the plans earlier this year—recommended approval of Heritage Oaks.

But Baton Rouge history is littered with examples of the populist-minded Planning Commission voting against the advice of its staff of paid, professional planners. Last month, after a two-hour hearing of impassioned testimony from opponents of Heritage Oaks, the commission voted 6-2 to deny approval of the subdivision.

For the record, the Planning Commission by law cannot let public concerns over issues like density, lot size or design influence its decisions over approval of a subdivision that otherwise complies with regulations. A federal court, in fact, just ruled on this issue in a similar case involving the Mallard Trails subdivision, which the Planning Commission voted down in 2013 amid public pressure. In his ruling, U.S. District Judge John deGravelles gave the developer the right to sue the Planning Commission for damages, noting that “public opposition can play a role in the decision to deny preliminary plat approval … but only if it rests on other legitimate reasons.”

Planning Director Frank Duke had to remind Planning Commission members of that fact during the heated debate over Heritage Oaks. “This is a subdivision, not a rezoning,” Duke cautioned commissioners. “All you can look at is the technical issues. … Everything else is irrelevant.”

After some discussion, the Commission determined that the traffic concerns and location of the proposed entrance to the development rises to the level of a public safety concern, which qualifies as a “technical issue”—hence the denial of the project.

In the weeks since, Jordan has attempted to address the traffic concerns by relocating the entrance to the subdivision. He has reduced the number of lots. He resubmitted plans and will go before the Planning Commission again in May, but he is not terribly optimistic.

“It’s a common problem around the country,” Jordan says. “Everybody wants Walmart to go somewhere else to build, and then they all go to Walmart.”

It’s easy to feel the fear and concern of the NIMBYs who would be neighbors of Heritage Oaks. We all have some NIMBY in our hearts, and while it’s easy to say we would be dictated by reason over passion, if the development is in our backyard, chances are we’ll oppose it.

But here’s the thing about Heritage Oak: It isn’t a zoning case, and the development complies with the existing zoning code. In most states, public comment would not have even been allowed in what should have been a routine subdivision approval. Louisiana law, because of its strong property rights bent, is different.

Whether that’s a good or bad thing about our law is a discussion for another day. What matters about Heritage Oaks is that if nearby residents don’t want a project like that in their area, they should petition the parish to change the zoning designation from rural to something more restrictive. That’s the only fair thing to do and the best way to ensure smart growth. Punishing an individual developer after the fact isn’t a good way to do business in a growing community.

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