155 So. 3d 567
La. Ct. App.2013Background
- H4th & B, Inc. owned 3608, 3616, and 3618 Fourth Street in Harvey, used historically as service station, tire repair shop, tow facility, and storage; parish pursued zoning and nuisance violations in 2009 under JPCO 19-16 and La. R.S. 33:1374.
- Parish previously litigated Paciera matter in the 1980s, which held parish lack of jurisdiction;Paciera action was not pursued further at that time.
- Trial and judgment occurred with a 2011 ruling; judgment not mailed until May 1, 2013, prompting a motion for new trial.
- Parish argued prescription could bar enforcement under La. R.S. 9:5625; defense contended non-conforming use could have accrued.
- Court vacated the judgment as to zoning issues and remanded for a new trial on whether a non-conforming use existed and the scope of that use; nuisance issues and remedies were affirmed.
- Court found confusion in the judgment regarding whether zoning was considered and held abuse of discretion in denying a new trial on prescription/ zoning terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prescription barred zoning enforcement. | Paciera notice established prescription; non-conforming use continuous. | Written notice (1986) required; action tolled prescription; non-conforming use could be ongoing. | Prescription issue remanded for specific consideration; unclear from judgment. |
| Whether the non-conforming use of trucking business and heavy-truck storage was continuous. | Use allegedly accrued and continued, creating legal nonconforming use. | Non-conforming use continuity not clearly proven; abandonment/discontinuance possible. | Remanded to determine continuity and whether prescription applies to zoning. |
| Whether the motion for a new trial should have been granted on newly discovered evidence or law/evidence against the judgment. | New trial warranted due to post-judgment developments. | Art. 1972(2) not applicable; but Art. 1971/1972(1) allow new trial for legal/evidentiary issues. | Judge abused discretion; new trial on zoning/prescription issues warranted. |
Key Cases Cited
- Parish of Jefferson v. Paciera, 496 So.2d 266 (La. 1986) (notice and prescription interplay in zoning actions; ongoing parish action proves notice)
- Phillips’ Bar and Restaurant, Inc. v. City of New Orleans, 116 So.3d 92 (La. App. 4 Cir. 2013) (presence of notice and accruals; prescription can affect non-conforming use)
- Hansel v. Holyfield, 779 So.2d 939 (La. App. 4 Cir. 2000) (post-judgment evidence; Art. 1972(2) applicability limitation)
- Warner v. Carimi Law Firm, 725 So.2d 592 (La. App. 5 Cir. 1998) (abuse of discretion standards in new-trial rulings)