There’s an old saying about being careful what you wish for.
Southdowns residents who, six years ago, fought unsuccessfully against rezoning 119 acres of farmland on Perkins Road to make way for a traditional neighborhood development called Rouzan may soon find out why that adage urges caution.
Last month, they got what they had long wanted when the First Circuit Court of Appeals ruled that Rouzan violates the city-parish traditional neighborhood development ordinance. The court reasoned that developer Tommy Spinosa did not have full ownership and control over all the property within the boundaries of the TND when the Metro Council rezoned it in 2008.
But now what?
“Is a PUD [a planned unit development] or single-family residential zoning a better solution?” asks Elizabeth “Boo” Thomas, director of the Center for Planning Excellence. “I don’t think so. The beauty of the TND ordinance is the safeguards and restrictions built into it. Without that, you don’t know what you might get.”
Though Spinosa is petitioning the appeals court for a rehearing, if he is unsuccessful in his appeal he will have to go through the rezoning process again. If that proves to be even half as contentious as it was in 2008, it will be bloody and divisive.
Here’s a look at some of the issues surrounding the Rouzan ruling.
When Mary Bordelon Ford died in 2003, she bequeathed to two of her longtime employees two houses, a barn and a total of 5 acres of land, all of which was situated in the middle of 124 acres of farmland she owned at the corner of Perkins Road and Glasgow Avenue. She also bequeathed to the men, Bob Welch and Daniel Hoover, a private road leading to their property.
Her heirs sold the remaining 119 acres to developer Tommy Spinosa for his planned TND, Rouzan. He petitioned to have the property rezoned from A-1 Single Family Residential to TND, encountering fierce neighborhood opposition in the process. He eventually succeeded, after taking the fight to the Metro Council.
Upon the rezoning, Welch and Hoover filed suit challenging the validity of the Rouzan rezoning on three grounds. First, the conceptual plan provides for all the commercial development to be on the edge of the TND along Perkins Road, rather than sprinkled throughout, as required by law. Second, Spinosa never provided a statement showing he has the financial wherewithal to complete the project, as required by law.
Finally, because of the 5 acres owned by Hoover and Welch, as well as the road leading to it, Spinosa never had complete ownership and control over all the property within the boundaries of the TND, as required by law.
The case dragged on for more than four years, even after construction at Rouzan got underway and houses started going up around the Hoover and Welch properties. Judge Wilson Fields of the 19th Judicial District consistently ruled in favor of Spinosa. That changed Feb. 26, when the First Circuit nullified Rouzan’s zoning as a TND.
The three-judge panel that issued the ruling did not address the first two issues in the lawsuit—those that deal with the location of the planned commercial development and the lack of proof that Spinosa has the financial wherewithal to complete the project.
Instead, it focused on the argument that the developer lacks total ownership control over all the property within the boundaries of the TND. That’s not only because of the 5 acres owned by Hoover and Welch but because of a servitude of passage—or road—leading from their property through the Rouzan development to Glasgow. “We find the existent servitude of passage prevents [Spinosa] from having the complete, unified and legal control necessary for compliance with the UDC,” the court wrote.
For the time being, Rouzan’s zoning will revert back to A-1 Single Family Residential. That doesn’t mean residents will have to tear down their houses or dismember any structures that have already been built. But it may put a hold on future residential development that is planned.
It will also mean a loss of value for the developer, at least for now. Commercially zoned property has a higher value because it allows for denser development.
“That ruling probably costs $5 million because all the zoning reverts back to A-1,” says local property attorney Randy Roussel, who is familiar with the Rouzan case. “That means [Spinosa] loses his planned apartments. He loses his planned retail. All that commercial zoning he had on Perkins goes away.”
While Spinosa awaits word on whether the First Circuit will rehear the matter, he is also pondering his options with the Planning Commission.
If he decides to go through the rezoning process again, he doesn’t have to apply for Rouzan to be a TND. He could decide, instead, to develop it as a Planned Unit Development or a series of Small Planned Unit Developments.
“He has a lot of options,” says First Assistant Parish Attorney Lea Anne Batson.
It’s possible the ruling could discourage other developers from pursuing TND zoning because it’s just too much trouble. Roussel, for instance, says he always advises his developer clients to apply for PUD zoning over TND.
“PUDs are just easier, and we as a community have a lot more experience with them,” he says.
Also, the ruling could cause headaches over the issue of servitudes, which the judges focused on in their opinion. The court said, specifically, that because Spinosa doesn’t have complete ownership and control over the road leading from the Welch and Hoover property to Glasgow, he doesn’t control all the boundaries within his TND.
“Even if one were to take the court’s language on its face, it is doubtful a servitude of passage would constitute a loss of complete ownership’ over property,” says Christopher Odinet, an assistant professor at the Southern University Law Center. “Servitudes traverse property all the time. If one seeks a TND rezoning, must one obtain the consent of the holders of any and all servitudes across the property? The water and power company? The local neighborhood association?”
Southdowns residents who opposed the rezoning of the Ford property for Rouzan complain they have long been unfairly maligned as NIMBYs.
They insist their fear was not about development in their neighborhood, per se, but about the way the TND would be done and whether the controversial Spinosa would keep his word to do it correctly. They’re not any more comfortable with the project now than they were six years ago.
However, they say they hope if the property comes up for a rezoning hearing in the months ahead, the community will have an opportunity to ensure that however Rouzan is rezoned, it is done properly.
“Hopefully now there will be better legal oversight of the development of the Ford property, ” says Southdowns resident Angela Angelloz, who fought the rezoning in 2008.
“Hopefully now the end result will be something that more appropriately reflects the surrounding residential areas that are really and truly an authentic traditional neighborhood, as opposed to one that has to be fabricated.”
