B.D. Grand, Inc. v. St. Charles Parish

713 So. 2d 846, 97 La.App. 5 Cir. 1226, 1998 La. App. LEXIS 1467, 1998 WL 268380
CourtLouisiana Court of Appeal
DecidedMay 28, 1998
DocketNo. 97-CA-1226
StatusPublished

This text of 713 So. 2d 846 (B.D. Grand, Inc. v. St. Charles Parish) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.D. Grand, Inc. v. St. Charles Parish, 713 So. 2d 846, 97 La.App. 5 Cir. 1226, 1998 La. App. LEXIS 1467, 1998 WL 268380 (La. Ct. App. 1998).

Opinions

WICKER, Judge.

This is an appeal in a zoning dispute. At issue is the method of measurement to be used to determine the distance between the premises of a proposed nightclub and a church. We affirm the trial court’s conclusion that the premises are beyond the mandatory minimum distance from the church, qualifying plaintiff for a certificate of zoning compliance.

B.G. Grand, Inc. d/b/a Executive Night Club (hereafter called “Grand”) sought a certificate of zoning compliance from St. Charles Parish in order to apply for a special permit to open a nightclub. The parish zoning department refused to issue the permit, however, on the ground that the premises are within 500 feet of a church.

Grand filed a petition for writ of mandamus and for damages, contending that it is in compliance with the alcoholic beverage ordinances, it is entitled to issuance of a certificate of zoning compliance, and denial of its certificate is arbitrary. Plaintiff sought an order directing the Parish to issue it the certificate of compliance, as well as a judgment awarding damages for loss of profits plaintiff could have earned had it been able to operate its premises as desired.

In response the Parish asserted that the premises in question are located within 500 feet of a church and, further, that the property is not zoned C-3, which is required for barrooms.

Grand filed a supplemental and amending petition asserting unconstitutionality of the parish ordinance, in the event the court found the method of measurement used to calculate the distance to the church shows that the church is less than 500 feet from plaintiffs premises.

After an evidentiary hearing, the trial court rendered judgment in favor of plaintiff, finding that the appropriate method of measuring is from the front door of the subject property to the property where the actual church premises are located. -In addition the court found that the property is zoned C-3. The court granted a writ of mandamus ordering that a certificate of zoning compliance be issued to plaintiff, but did not rule on constitutionality of the ordinance or on plaintiffs request for damages.

The Parish has appealed, contending the trial court erred in its findings on the appropriate method of measuring and on the zoning designation.

EVIDENCE

The St. Charles Parish Code of Ordinances prohibits operation of a lounge within 500 feet of a building used exclusively as a church. Grand submitted a survey measuring the straight-line distance from Grand’s front door to the church’s front door as 621 feet. Both the parish ordinance and state law, however, require the measurement to be taken from “the nearest point of the property line of the church ... to the nearest point of the premises to be licensed.” St. Charles Parish Code of Ordinances, Section 3 — 1(b); La. R.S. 26:81(C) and 26:28kg).1

[848]*848The nightclub premises are in a strip shopping center at the intersection of Ellington Avenue and Post Street in Luling, near the First Baptist Church of Luling. The church is located on one of several lots the church owns near Paul Maillard Road and Fifth Street. The Parish asserted that the nearest point of the church property involved here was not its front door but the nearest rear corner of a lot owned by the church at the intersection of Ellington Avenue and Fifth Street (designated as “Lot C” on the survey in evidence).

|3In written reasons for judgment, the trial court found that the proper method of measuring the distance is from the front door of the subject property to the property on which the actual church premises are situated. That method makes the distance from the subject property to the church premises more than 500 feet. Further, the court found the evidence ambiguous as to whether property is zoned C-2 or C-3. Finding that the Parish failed to prove by a preponderance of the evidence that the subject property is zoned C-2, the court held that the property is properly zoned C-3. The court concluded that plaintiff is entitled to issuance of the certificate of zoning compliance.

At trial several surveys and documents of title were introduced which establish that the First Baptist Church of Luling owns several lots near the corner of Paul Maillard Road and Fifth Street. (See survey, Appendix.) The church building sits on Lot 24 (designated “Worship Center” in the Appendix.). Adjacent to it along its north boundary is Lot 3; on the north side of Lot 3 is Lot 2; on the north side of Lot 2 is Lot 1, which is at the corner of Paul Maillard Road and Fifth [849]*849Street. To the east side of Lots 1, 2 and 3, and stretching their length, is Lot 4; to the east of Lot 4 and stretching the same length is Lot 5; to the east of Lot 5 and extending as far as Lot 5’s southern boundary is Lot C. No point on Lot C touches Lot 24, on which the church building sits.

The Parish’s measurement was made from the rear door of Grand’s premises to the northeast corner of Lot C.

Grand’s president, Brett Granier, testified the club is located in a shopping center which includes a restaurant, a hair salon, a drugstore, a health club, and formerly a discount department store. He said there are no sidewalks along Ellington Avenue, which runs along the back of the building in which Grand’s proposed nightclub is located, but there are sidewalks along Paul Maillard Road, also known as Louisiana Highway 52, which runs along the opposite side of the block in which the property is situated. He stated that measuring from the club’s front door down Post Street to Ellington to the church’s property line, the distance is 515 feet. If the distance was measured from the club’s back door, LGranier testified, the distance is reduced to 455 feet. He testified, however, that people would be entering the club by its front door.

Granier stated that on two previous occasions when he had applied for licenses, the permits department always measured from the front door. Measuring along the sidewalk to the nearest building used as a church along Paul Maillard Road is well over 500 feet. Granier also said there are no sidewalks as such along the entire block that separates his property from the church location and that the rear entrance of his building is used only to put out the garbage and as an emergency exit.

Granier testified, without objection, that he had telephoned the permit department two weeks before the trial to inquire about the zoning designation of the property and had been told it was zoned C-3. He stated he has never been denied a permit before.

Joseph Lassus, director of the parish planning and zoning department, testified there is a conflict in the parish zoning maps as to the designation of the area as C-2 or C-3 and that the most recent map designates it as C-3. He stated there are no incorporated areas in St. Charles Parish. He acknowledged that the parish had made a determination in 1992 that the zoning ordinance did not apply to the building in which Grand now wishes to open a nightclub and that determination authorized issuance of an occupational license.

Rhys Kinler, an employee of the parish planning and zoning department, testified that the property in question has been treated as C-3 since 1981 and that the applicable zoning map indicates the property is C-3. He himself measured the property distances at issue and determined the distance was 502 or 503 feet.

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Bluebook (online)
713 So. 2d 846, 97 La.App. 5 Cir. 1226, 1998 La. App. LEXIS 1467, 1998 WL 268380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bd-grand-inc-v-st-charles-parish-lactapp-1998.