116 So. 3d 92
La. Ct. App.2013Background
- Phillips’ Bar operates at 733 Cherokee Street (Lot 1-A) under a Class-A ABO license; Lot 2-A (727 Cherokee Street) is owned by 733 Cherokee, LLC and used as a patio.
- Lot 2-A has never been issued an ABO permit and was developed as an accessory patio to Lot 1-A, with overlapping ownership between Ippolito family members and the LLC.
- MARI, a neighborhood association, intervened to enforce a restrictive covenant; the City sought to prohibit Lot 2-A’s use for bar/restaurant activities under zoning.
- The district court issued a preliminary injunction; the City and MARI later sought a permanent injunction; trial occurred in 2011 and judgment issued in 2012.
- District court held Lot 1-A’s legal nonconforming status did not extend to Lot 2-A and that MARI’s restrictive covenant claim had prescribed; it also entered a permanent injunction against use of Lot 2-A.
- On appeal, the court amended the injunction to remove prohibitions on Phillips’ selling alcohol on Lot 1-A for consumption on Lot 2-A, and affirmed other aspects of the rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lot 2-A carries the nonconforming use of Lot 1-A | Phillips’ argues Lot 2-A inherits Lot 1-A’s nonconforming status. | City/MARI contend nonconforming use does not extend to Lot 2-A. | Nonconforming use does not extend to Lot 2-A. |
| Whether plaintiffs have a vested right to use Lot 2-A with Lot 1-A’s nonconforming use | Plaintiffs claim a vested right via continuous use and notice/prescription rules. | City/MARI maintain no vested right due to lack of proper posting and discontinuous/nonconforming use standards. | No vested right established; district court’s ruling affirmed. |
| Whether the permanent injunction prohibiting sales on Lot 2-A was proper in light of prescription | City/MARI prescription should bar enforcement. | Actions tolled by initial proceedings, but abandonment terminated tolling. | Injunction altered; prescription found to bar certain prohibitions against Lot 2-A sales. |
| Whether the injunction prohibiting consumption of alcohol on Lot 2-A for Lot 1-A patrons was proper | Prohibition on cross-property consumption was beyond scope and not properly authorized. | City/MARI had right to restrain nonconforming cross-use to protect zoning. | Injunction modified to remove cross-use prohibition. |
| Whether Lot 2-A usage as a reception facility or bar is permitted under the CZO | Lot 2-A usage qualifies as a nonconforming reception facility with sufficient events. | Insufficient evidence that Lot 2-A operated as a designated reception facility or as a nonconforming use tied to Lot 1-A. | Not established; Court declined to recognize Lot 2-A as a vested nonconforming reception facility. |
Key Cases Cited
- City of New Orleans v. Elms, 566 So.2d 626 (La. 1990) (zoning's purpose to confine uses and preserve neighborhood character)
- Redfearn v. Creppel, 455 So.2d 1356 (La. 1984) (nonconforming use continuation should be narrowly applied)
- Elms, 566 So.2d 626 (La. 1990) (nonconforming use continuation and prescription interplay)
- Charbonnet v. State Realty Co., 99 So. 865 (La. 1923) (abandonment interrupts but may end prescription interruption)
- Long v. Chailan, 199 So. 222 (La. 1940) (abandonment terminates interruption of prescription; effect on subsequent suits)
- Box v. French Market Corporation, 798 So.2d 184 (La. App. 4th Cir. 2001) (abandonment effect on tolling and case status)
- Elysian Fields Church of Christ v. Dillon, 7 So.3d 1227 (La. App. 4 Cir. 2009) (standard for permanent injunctions and ordinary proceedings)