Church v. Liquor

Yesterday the Louisiana’s Court of Appeal (Second Circuit) issued this opinion. It begins:

We granted rehearing to further review whether the Shreveport City Council (the “City Council” or “City”) abused its discretion when it reversed the decision of the Zoning Board of Appeals (the “ZBA”) which granted the special exception use to Roland Toups for his proposed Thrifty Liquor store and the property owners. The City Council decision was driven by the fearful concerns of a vocal opposition before it. We conclude that the denial of the special exception use was not based on objective and valid reasoning and was, therefore, arbitrary and capricious.

This liquor retail establishment’s application for a ‘special exception use’ was opposed by nearby churches. Among other arguments voiced by the churches were that “Thrifty Liquor would create an environment of heavier traffic, drunk drivers, and a higher violent crime rate-all of which would put the children attending the nearby church school in peril.”

The court of appeal — correctly, IMHO — concluded that these fears “were not based on fact. The City Council allowed unfettered fear and rank speculation to lead to unnecessary and illegal action.”

The dissent, like all dissents, is worth a look too:

Once the elected representatives vote to regulate and limit the retail package liquor outlets for the alcoholic beverage industry, as they have in this case, by what standard of review may this court decide that the city council’s assessment for the public health, morals, safety and peace of its citizens is improper? In fashioning that standard of review, the judiciary can easily make itself a super-city council for city government unless the proper deference is given.

Had the tables been turned — that is, had City won this appeal by reversal – I wonder if there would have been a dissent? And if so, would that dissent have opened with the same wording?

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