137 So. 3d 1289
La. Ct. App.2014Background
- Plaintiffs Dr. David Millaud and C & M Surgical Group own 3670 Gentilly Blvd., zoned RS-1 but historically used as a law/dental office with claimed nonconforming use status.
- Hurricane Katrina (Aug. 29, 2005) damaged/flooded the property; plaintiffs obtained an electrical/repair permit on Sept. 20, 2006 and performed some repairs through Oct. 2008.
- City Department of Safety and Permits ruled Aug. 12, 2011 that plaintiffs lost nonconforming-use status because business operations were not reestablished within the statutory/ordinance deadlines; BZA denied plaintiffs’ appeal on Dec. 12, 2011.
- Plaintiffs sought review in Civil District Court; trial court remanded to BZA, later affirmed the BZA decision (May 23, 2013); motion for new trial denied (June 5, 2013).
- Intervenors moved to dismiss the appeal as prescribed; court denied that motion because prescription was a defect personal to original parties and intervenors may not raise it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether property retained nonconforming-use status after Katrina under La. R.S. 33:4882 and CZO §13.3.2 | Millaud: statute and City practice allow two years to begin rebuilding and an additional year to complete repairs; he began repairs within two years, so status preserved | City: no restoration permit application or business reestablishment occurred within required time; nonconforming use lost | Held for City: plaintiff failed to complete restoration within one year after issuance of the Sept. 20, 2006 permit and sought no BZA extension; nonconforming use lapsed |
| Whether issuance of permits and commencement of work created a vested property right protecting nonconforming status | Millaud: obtaining permits and beginning renovation vested his right to continue and retain nonconforming use | City: permit issuance does not relieve owner of ordinance/statutory timetables; compliance required | Held for City: permit started the one-year completion clock under CZO §13.3.2; no entitlement to ignore deadlines |
| Whether BZA decision was arbitrary, capricious, or an abuse of discretion | Millaud: BZA/Dept. misapplied ordinance and City practice regarding ongoing work | City/BZA: decision followed ordinance and statute, applied restoration deadlines correctly | Held for City: appellate review presumes BZA validity; no abuse of discretion shown |
| Whether intervenors could raise prescription to dismiss appeal | Intervenors: BZA decision Dec. 12, 2011; plaintiffs’ amended petition Aug. 3, 2012 exceeded 30-day appeal period | Plaintiffs: La. C.C.P. art. 1094 bars intervenors from objecting to defects personal to original parties | Held for Plaintiffs: intervenors may not raise prescription under article 1094; motion denied |
Key Cases Cited
- Ellsworth v. City of New Orleans, 120 So.3d 897 (La. App. 4 Cir. 2013) (standard of review for BZA decisions; presumption of validity)
- French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm’n, 763 So.2d 17 (La. App. 4 Cir.) (BZA decisions reviewed for arbitrary or capricious action)
- Curran v. Board of Zoning Adjustments, 580 So.2d 417 (La. App. 4 Cir.) (standards for reviewing zoning board decisions)
- Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 138 (La. App. 4 Cir.) (deference to zoning boards)
- Cross v. City of New Orleans, 446 So.2d 1253 (La. App. 4 Cir.) (zoning-review principles)
- Joubert v. City of New Orleans, 81 So.3d 994 (La. App. 4 Cir. 2012) (reading La. R.S. 33:4882 with CZO §13.3.2: two years to apply, one year to complete)
- St. Raymond v. City of New Orleans, 769 So.2d 562 (La. App. 4 Cir.) (limits on vested-right claims where ordinance timetables apply)
- Toups v. City of Shreveport, 60 So.3d 1215 (La. 2011) (appellate court should not second-guess zoning decisions grounded in public concerns)
- TSC, Inc. v. Bossier Parish Police Jury, 878 So.2d 880 (La. App. 2 Cir.) (zoning decision deference)
- Williams v. Parish of St. Bernard, 49 So.3d 520 (La. App. 4 Cir.) (BZA authority to grant extensions to restoration permits)