DMK Acquisitions & Properties, L.L.C. v. City of New Orleans

124 So. 3d 1157, 2013 La.App. 4 Cir. 0405, 2013 WL 5274274, 2013 La. App. LEXIS 1882
CourtLouisiana Court of Appeal
DecidedSeptember 18, 2013
DocketNo. 2013-CA-0405
StatusPublished
Cited by10 cases

This text of 124 So. 3d 1157 (DMK Acquisitions & Properties, L.L.C. v. City of New Orleans) 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
DMK Acquisitions & Properties, L.L.C. v. City of New Orleans, 124 So. 3d 1157, 2013 La.App. 4 Cir. 0405, 2013 WL 5274274, 2013 La. App. LEXIS 1882 (La. Ct. App. 2013).

Opinions

ROSEMARY LEDET, Judge.

11 This is a City of New Orleans code enforcement proceeding. The City commenced this proceeding against DMK Acquisitions & Properties, L.L.C. (“DMK”) as the owner of commercial property located at 1532 Robert E. Lee Boulevard in New Orleans (the “Property”). The City alleged that DMK was in violation of its municipal ordinances prohibiting public nuisance and blighted property. The City’s administrative hearing officer [1159]*1159(“HO”) found DMK guilty of the charged violations and imposed various fines. The Civil - District Court ( CDC ), functioning as an appellate court, affirmed the HO’s judgment. For the reasons that follow, we likewise affirm the HO’s judgment.

FACTUAL AND LEGAL BACKGROUND

As a result of Hurricane Katrina, which made landfall in the New Orleans area on August 29, 2005, the Property, which was the former location of the Lake Terrace Shopping Center (a strip mall), sustained extensive damage. On April 24, 2007, DMK purchased the Property for $1.85 million. At the time of the purchase, the hurricane damage to the Property had not been repaired. In January 2009, the 12City awarded DMK an Economic Development Fund grant totaling $250,000, which was intended to help bring the Property back into commerce. As of the date of the administrative hearing (June 7, 2012), the City had paid DMK $225,000 of the grant money; nonetheless, the Property remained unoccupied and in a state of disrepair.

On October 13, 2011, the City’s inspector conducted an initial inspection of the Property. According to the inspector’s initial report, the alleged violation was that the Property was unoccupied. The scheduling comments and complaint description read: “vacant lot, high grass and weeds covering the sidewalk, rodents.” The report indicated that the Property failed the inspection because the siding was missing and the structure was deteriorated. The Property additionally was cited for no work in progress.1

On May 3, 2012, a notice of hearing was issued to DMK as owner of the Property. The notice informed DMK of the alleged violations of the municipal code ordinances prohibiting public nuisance and blighted property — Section 28-37 public nuisance and Section 28-38 blighted property — and of the hearing scheduled for June 7, 2012, to determine whether it was guilty of violating the cited ordinances.

On the day of the hearing, the City inspector returned to the Property and conducted a re-inspection before the hearing commenced. In the re-inspection report, the inspector indicated that the Property failed the re-inspection for multiple treasons, which were listed as follows: (i) fascia boards and soffit were deteriorated, loose, and missing; (ii) the roof and the structure itself were deteriorated; and (iii) the studs were, deteriorated and exposed. The report also indicated that since the initial inspection the building on the Property had been fenced off. The Property again was cited for having no work in progress.2

At the June 7, 2012 administrative hearing, DMK was represented by two attorneys and its director, Kenneth Charity. The City was represented at the hearing by Jeremy Stevens, a non-attorney, who introduced himself at the hearing as a representative of the City’s Code Enforcement Department. Mr. Stevens requested to introduce into the record the City’s entire file on this matter, including the photographs attached to each of the inspector’s reports. DMK’s sole objection to the introduction of the file was that one of the photographs should be excluded because it showed debris outside the fence that surrounded the Property. With the exception of that photograph, the HO al[1160]*1160lowed the City’s entire file to be introduced.

Several members of the community appeared at the hearing to voice their concerns regarding the condition of the Property. Six individuals, who each were required by the HO to identify themselves by name and position, spoke in opposition to DMK at the hearing. Briefly, the testimony of those six individuals is summarized below:

1. Jamie White — Vice-President of Lake Terrace Gardens, L.L.C., and on-site property manager. Ms. White stated that she has over three hundred presidents who have voiced their concerns regarding the Property to her. She noted the Property has been vacant and that she has seen people going in and out the Property even though it has been fenced off. She introduced photographs she took the day before the hearing when DMK was trying to clean up the Property. She further noted that there are doors missing from the back of the structure and that the no trespassing signs on the Property are not clearly marked. She still further noted that current residents are worried about the Property and that prospective tenants come in on a daily basis and express concerns about living next to the Property because it is not maintained.
2. Karen Parsons — President of Oak Park Civic Association, a large neighborhood association. Ms. Parsons stated that she lived within five blocks of the Property. She introduced photographs reflecting tall grass on the Property and a telephone pole leaning over the sidewalk in front of the Property. The HO noted that these photographs showed the Property in a “less appropriate condition.” She noted that in 2008 there was a theft of copper from the Property that resulted in water running out of the structure on the Property. Although she immediately reported this to Mr. Charity, it took six to eight months before he had it repaired. She further noted that there were piles of leaves on the Property and that graffiti repeatedly appeared on the structure. She additionally noted that Mr. Charity received economic development funds from the City, yet he failed to maintain the Property.
3. Barbara Lacen Keller — Councilwoman-at-large Stacy Head’s representative. Ms. Keller stated that she visited the Property with Ms. Head. She further stated that Ms. Head’s opinion regarding the Property was that it “is extremely blighted” and “reducing the quality of life in the area and violates the law.” She also stated that Ms. Head wanted the administration to “do the right thing and issue judgment” finding the Property blighted.
4. Dalton Savwoir, Jr. — President of Gentilly Civic Improvement Association (“GO”), a coalition of twenty-one different neighborhood associations in the Gentilly area. He stated that the GCI wanted a “guilty judgment” against DMK. He further stated that DMK has owned the Property since 2007, which was more than enough time to show positive movement. He expressed disagreement with granting DMK’s request for an additional three months and stated that this would not benefit the community.
5. Scott Roger Wheaton, Jr. — appeared on behalf of the Lake Terrace Neighborhood Association. He [1161]*1161stated that the distressing fact about this Property was that when DMK acquired it in April 2007 it was in better condition than it was in June 2012 at the time of the hearing. He explained that in June 2007, Mr. Charity tore all the bricks off the building, but nothing has been done since that time. He further explained that “[i]t’s not a question of bad siding,” but rather of “[n]o siding.” He pointed out that it was error to state that the blight hearings regarding the |5Propert,y started in 2011; rather, he stated that the blight hearings regarding the Property started in 2010.

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Bluebook (online)
124 So. 3d 1157, 2013 La.App. 4 Cir. 0405, 2013 WL 5274274, 2013 La. App. LEXIS 1882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dmk-acquisitions-properties-llc-v-city-of-new-orleans-lactapp-2013.