SAVE LAKE MARTIN
Lake Martin is located in St. Martin Parish and it is home to the Cypress Island Nature Preserve, a cypress-tupelo swamp, 10,000 acres of wild bottomland hardwood forest habitat, including the largest remaining tract of hardwood forest in the Teche-Vermilion watershed, a nationally known water-bird rookery serving as a nesting place for Great and Little Blue herons, Great and Snowy Egrets, Neo-tropic Cormorants, Roseate Spoonbills, White Ibis, Anhinga, Alligators, various species of fish and other game. It is also a year round rookery for many species. Before the l950’s the old Lake La Pointe and surrounding area would flood with water from the Vermilion River and Bayou Teche. But in the spring and summer it would drain and become almost dry. The Lake survival and all that inhabited it was threatened. In the l950’s the State and the Chauffe family agreed to help in constructing a levee around the Lake area to hold the water throughout the year and to prevent unwanted flooding in nearby areas. The Chauffe family granted the State a servitude of use in favor of the public to a large section of the area surrounding Lake La Pointe to contain and drain the water and to create a fish and game preserve. The lake was renamed Lake Martin.
The impounded area was encircled by a newly constructed levee which included Rookery Road and the land extending from the levee to the water for 5 miles. No member of the Chauffe family, for nearly 70 years since granting the public a servitude extending from the levee road into the lake, ever constructed any building or otherwise impeded the public free use of the abutting strip of land and view of the Lake. Only one man has done so. Often visitors were seen taking a stroll around the lake and enjoying the views without hassle or avoidance of no trespass signs. Their passage and view were uninterrupted by big banners flying in the wind and large advertising signs. The alligators and other wildlife floated or played in the water near the edge of the land unafraid and undisturbed. And every year the birds came and some went. Other stayed and the forest flourished all year too. But now the Lake is under siege and threatened from the decision of one man who has decided it is a prime spot to conduct his commercial activities and make money. Because we are fighting to save Lake Martin, we have been called “bird watchers” unworthy of a voice. We are concerned citizens and landowners who appreciate and are grateful for God’s gifts. The Chauffe family agreed to grant a servitude to the State of Louisiana so that all who come to Lake Martin will have occasion to open their eyes and to share the beauty and wonderment of God’s creations. Since the 1950’s they have struggled to maintain the abutting land surrounding the Lake and the boat launch, without receiving a penny from the State, so that the public could take a stroll along the Lake or launch a small boat or canoe to explore it.
The Friends of Lake Martin (FOLM), comprised of landowners in the area, members of the Chauffe family, and other citizens who are concern about preserving Lake Martin, joined a zoning suit filed by the Parish of St. Martin against the only person conducting commercial activities on land within the impounded area of the Lake. Two weeks before the trial date the members were told the judge had express, behind closed doors, that he intended to dismiss the organization from the suit because, in his view, it had no right to fight in court to protect the Lake. There are many cases that say organizations like FOLM have the perfect right to sue and the judge was wrong. But to appeal his ruling would have been beyond the organization’s ability to pay the lawyers tens of thousands along with the threat of paying thousands more in court cost to the defendant if unsuccessful. Sadly the organization members felt they were forced to drop the suit. Only the Parish President and lawyer were left to speak.
We know now they were predictably ignored and the case was dismissed. The Parish President expressed surprise that the judge had not ruled in favor of the Parish. If the law is what he was relying on in bolstering his confidence that the Parish would prevail, he was right in thinking so. Unfortunately, the judge had something else in mind.
During the trial, the defendant claimed he saved the whole State of Louisiana after hurricane Katrina. He alone testified, with the confidence of an expert—though unlicensed and without a degree in any known specialty—that the State was tethering on the brink of ruin but for his kind gesture and forethought to increase tourism at Lake Martin. The judge later, with a celebratory nod, praised his efforts and spoke glowingly of his character.
It is true after hurricanes Katrina in 2005, Rita in 2007, Gustav and Ike in 2008, certain areas of Louisiana were severely impacted by wind and flood damage. The destruction in New Orleans will forever remain in the memory of all who survived. But Lake Martin is located in an area of the State that was not affected by Hurricanes Katrina, Rita or Ike. Though Gustav had some destructive impact in the area, it did not threaten the survival of the State of Louisiana or Lake Martin.
There is another truth the judge made no mention of during his public praise of defendant’s post storm efforts— the winds had subsided, the flood water had long rolled over, and the path to recovery had long been taken by all affected by the hurricanes when defendant decided in 2011 to violate the Parish’s zoning laws and breach the servitude granted by the Chauffe family in favor of the public.
Neither did the Judge take notice that defendant was only a leaseholder of the land upon which he decided to construct a permanent structure and conduct his commercial activity. Even though the present owner of the property was not a Chauffe family member, his ancestor in title was and had long granted in the 1950’s a servitude burdening its use in favor of the public. It is settled law a leaseholder cannot acquire more rights to property and its use than the owner possess. And the owner cannot conduct or allow activities on his property that interferes with a servitude of use granted to the public.
If you read the law none of what transpired next makes any sense. Yet, in open court, the judge actually declared defendant, as a leaseholder, acquired a “vested right” to remain on the property and to continue his commercial activities forever! He proceeded to say defendant had the right to “make a living” and to “life, liberty, and the pursuit of happiness.” No law in Louisiana affords a vested right to defendant to violate the zoning ordinances of the Parish, the right of other landowners, and to trample on the lawfully vested right of the public. There is only one case in this State that declared a zoning violator had acquired a vested right where a valid permit had in fact been issued. The zoning board voted to change the restrictions after issuing the permit. That case has never been followed in any case where an invalid permit has been issued mistakenly or in error and the zoning law prohibited the building or activity at the time the permit was issued. In St. Raymond v. City of New Orleans 2000, the Fourth Circuit Court of Appeal said the courts “before and after Dunn have held the issuance of building permit does not confer any constitutionally-protected right on the holder of the permit.” They also said “the mere fact that a building permit was issued in error and contrary to the laws of the City does not vest an irrevocable right to proceed under that permit contrary to subsequent action cancelling the permission previously given.” The court noted further it also has been said: “a building permit issued in violation of the law or under mistake of fact confers no right, and may be revoked upon discovery of the error, even after business operations have begun.” 13 Am. Jur. 2d Building section 11.
The Louisiana Fourth Circuit also said in 2013, in Cheryl M. Ellsworth v. City of New Orleans, et al, the holding in Dunn only applied to revocation of a valid permit not a permit mistakenly issued and in violation of the Parish’s comprehensive zoning plan. No court in Louisiana has followed the Dunn Case when a permit has been mistakenly issued and the existing zoning ordinances prohibit the construction or activity. Nassau Realty Co., Inc. v City of New Orleans, 231 So. 2d 327; Cross v. City of New Orleans, 446 So. 2d 1253; Pallet v. City of New Orleans, 433 So. 2d 1091; St. Charles Avenue v. City of New Orleans, 704 So2d 909; Brennan v Board of Zoning, 371 So. 2d 324. The permit issued to defendant was not valid and the zoning law, at the time, prohibited any commercial activity and the construction of any permanent building on the property.
The judge also made “much to do” about a missing zoning map filed with the Parish’s Clerk of Court Office. The zoning ordinances recites that the map was filed in the Clerk’s Office. When and who removed or misfiled the map was a question that remained unanswered during the trial. Defendant chose instead to point out the Parish filed a copy of the map to replace the missing map days before the trial. The written zoning ordinances clearly defined the areas covered and recites the zoning map was filed in the public records. The public records also contain documents memorializing the servitude in favor of the public and there are many publications depicting the impoundment area surrounding the Lake. The Supreme Court in Palermo Land Co. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482 (1990) put to rest defendant’s claim that the Parish should be estopped from cancelling and revoking the mistaken permit noting estoppel cannot not be used when positive zoning laws exist. And it’s holding make clear the missing map is of no legal consequences as well. Notices of the Parish’s comprehensive plan and proposed zoning ordinances were published prior to adoption and again published and made available to the public in several publications after adoption. Defendant never offered any proof to the contrary and never offered proof he searched for any map before applying for a permit. If he had he would have been directed to the zoning board who would have been alerted it was misfiled at the courthouse or wrongly removed from it.
Defendant also managed to acquire an alcohol permit on property located within the impoundment area surrounding Lake Martin. The license he claims was approved by the former Sheriff and Parish council President. The law then and now prohibits the sale of alcohol on game and fish preserves owned or managed by the State and in areas regulated as “wetlands” and residential only communities. No prior notices were sent to landowners in the areas alerting them that defendant applied for a liquor license and he did not apply for a building permit waiver until after he was sued. The waiver was denied.
When defendant first applied for a permit, he did not use an address assigned to the property where his commercial businesses are located. A correct address would have shown the property was in the impoundment area. Instead the address he used was across Rockery Road where residences are permitted and even then the permit actually issued only allowed a movable small structure. Defendant built a permanent big structure that did not even comply with the mistaken permit issued. Apparently, this too made no difference to the judge who was more impressed by the value of the tour boats defendant has acquired. These boats are moored in the Lake—no other tour boat operator has been permitted to permanently moor their boats in Lake Martin. In City of New Orleans v. Langenstein, 111So2d 363, the court said: “We know of no statutory law or other authority which gives to any city official or to any city board or department an arbitrary right to waive in favor of any land owner proprietor the city’s right to enforce compliance with the provisions of the Comprehensive Zoning Law.” And as the court said in Boyd v Donelson, 193 So. 2d 291, the plaintiff in that case had no right to rely on the mistakenly issued permit because he had no “color of right to it” because he failed to comply with the important requirement for securing it. Here, defendant failed to put the correct address on the form—an essential prerequisite to securing a valid permit. Again the judge ignored this fact.
The sewerage waste flowing from his commercial operation is threatening the ecosystem of the Lake and all wildlife that inhabits it. In fact his construction and operations now extends in the water portion of the Lake. He has constructed a wharf that actually extends beyond the bank into the water of the Lake Martin and a floating deck, displacing and disrupting the natural habitat of alligators, fish, bird, and wild game in the area. The infrastructure in the area cannot support the parking demand and Rockery road, designated in the flood plan as the levee road, lacks the substructure to support the volume of traffic and large trucks and buses resulting from defendant’s commercial activities. His construction on the property is obstructing the public use and the State’s flood and drainage plan. All of this the judge sanctioned and ignored Louisiana law specifically prohibiting defendant’s activities and construction. La. R. S. 38:225 expressly mandates:
A. No person shall:
(1)(a) Place or cause to be placed upon or within fifteen feet of any part of the levees fronting any waterway subject to the control or surveillance of police juries, levee boards, municipal corporations, or other authorized boards or departments any object, material, or matter of any kind or character which obstructs or interferes with the safety of the levees or is an obstacle to the inspection, construction, maintenance, or repair of any levee; or place or cause to be placed any object, structure, material, or matter of any kind or character upon any part of any land which the state or any agency or subdivision thereof may own or acquire by deed, lease, servitude, charge, or otherwise, and through its authorized representative, may donate, grant, or otherwise convey to the United States’ rights-of-way, easements, or other servitudes for the construction, improvement, or maintenance of any flood-control structures or natural or other waterway, which may obstruct or interfere with the improvement or maintenance of such waterway or use of the land for flood-control purposes.
Rockery road which serves as part of the 5 mile levee surrounding Lake Martin and all the property abutting it leading into the water forms part of the State’s flood control plan for the area, the old lake La pointe, and Lake Martin. Defendant’s commercial activities are occurring within this zone. After the judge said his permit and liquor license are good forever, he left the courtroom and within days he roped off and posted “no trespassing” signs on all the land from where he operates to only short distance from the boat launch. He also trucked in a huge outdoor cooler. Each day he seems bent on encroaching even more on the public’s servitude. It would not be surprising if a fully functioning “barroom” is next on his to do list.
If defendant is allowed to continue his commercial activities in the impoundment area, the other landowners on whose property he is traversing in the Lake will take steps to prevent any trespassing on their property, including the portion covered by water. They will also close the boat launch. These are the regrettable and unfortunate consequences necessitated by the judge’s decision if left to stand. The recreational use immunity, which currently protects the landowners from suits, does not apply to commercial activities. The landowners donated the use of their property to the public expecting no monetary gain. They simply cannot afford to pay for insurance or incur the risk of losing all that they own so defendant can reap the financial reward of their kind gesture many years ago.
The State has not taken any step to protect the servitude the landowners granted in favor of the public. The Department of Wildlife and Fishery, despite repeated requests, did nothing to help the Parish or landowners protect the public servitude. It did not make an appearance in court or file a single paper in support of the Parish. When contacted again before the trial date, an employee on the phone said the lawyer for the Department was on sick leave and no one was available in time to help. This they offered as an excuse despite the fact the Department has been aware of the suit for years!
We ask that you call the Parish council members to encourage them to stay strong and vote to appeal the judge’s decision. Perhaps the power of your number and calls to the Governor and Attorney General will nudge them into action as well.
We also ask that you consider donating whatever amount you can spare to help the landowners fight in court to save Lake Martin and to restore the public servitude granted by them.
Thank you all very much for caring about the world we share.