LAFAYETTE CITY-PARISH CONSOL. v. Fitch

856 So. 2d 1276
CourtLouisiana Court of Appeal
DecidedOctober 1, 2003
Docket03-377
StatusPublished
Cited by5 cases

This text of 856 So. 2d 1276 (LAFAYETTE CITY-PARISH CONSOL. v. Fitch) 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
LAFAYETTE CITY-PARISH CONSOL. v. Fitch, 856 So. 2d 1276 (La. Ct. App. 2003).

Opinion

856 So.2d 1276 (2003)

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT
v.
Kevin FITCH and Bayou Land Investment, Inc.

No. 03-377.

Court of Appeal of Louisiana, Third Circuit.

October 1, 2003.
Rehearing Denied November 5, 2003.

*1277 John Alfred Mouton, III, Lafayette, LA, for Plaintiff/Appellee: Lafayette City-Parish Consolidated Government.

Kaliste Joseph Saloom, III, Saloom & Saloom, Lafayette, LA, for Defendant/Appellant: Kevin Fitch, Bayou Land Investment, Inc.

Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.

AMY, Judge.

The Lafayette City-Parish Consolidated Government brought this enforcement action against the defendant property owners asserting violations of an ordinance related to the operation of salvage yards. In particular, the City complained that the defendants failed to comply with the enclosure requirements relevant to this type of business. The trial court found in favor of the City, ordering enforcement. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

Defendants, Bayou Land Investments, Inc. and its owner, Kevin Fitch, purchased a tract of land in the City of Lafayette in 1993. The property abuts Ambassador Caffery Parkway. The defendants operate an auto salvage yard on that property. Prior to purchase, use of that portion of property zoned for light industry as an auto salvage yard was approved by the zoning board of the City. The record indicates that, by March 1995, the City, through the Director of Zoning and Development, notified Mr. Fitch that his business was in violation of zoning requirements due to the use of the residentially zoned portion of the property for salvage operations. Furthermore, he was ordered to remove junked vehicles not contained in the area zoned for light industrial use. Mr. Fitch was also ordered to comply with City fencing requirements. Subsequently, in May 1995, Mr. Fitch sought approval of the City, through Environment Quality Manager Bette Vidrine, to erect a fence using a specific type of fabric. The City approved the proposal, notifying Mr. Fitch by letter dated March 3, 1995.[1] An internal memo indicates that Mr. Fitch informed the City that he was proceeding with the work. According to Ms. Vidrine, however, the approved cloth was not used for the fence. She explained that, despite Mr. Fitch's efforts, there has never been a sight-proof fence on the property and that she knew of several prosecutions regarding the fence.

This case, which commenced with the City of Lafayette filing a Petition for Injunctive Relief and For Abatement of a Nuisance in June 1998, involves, in part, the question of whether the defendants complied with the fencing requirements attendant to auto salvage businesses. The City alleges that the defendants have consistently failed to meet those requirements. The City presented evidence indicating this failure is not only ongoing, but is of a longstanding nature. The defendants contend that they should be subject to the City Ordinance existing at the time their business commenced and not to more *1278 stringent fencing requirements subsequently enacted. The issue of which ordinance was to be enforced became an issue in the instant litigation.

At the time of the purchase, the City Code of Ordinances, adopted in 1965, was in effect. A portion of that ordinance related to salvage yards. In particular, Chapter 14 ¼-12, was entitled "Junked Property." Section 14 ¼-12, which is entitled "Enclosure required," provided at that time as follows:

No person, firm, or corporation shall store or offer for sale any iron and steel junk, rags or wreckage of motor-driven vehicles or automobiles or trucks, including parts and accessories thereof, and no person, firm, or corporation shall wreck or dismantle said items for commercial purposes on any open lot or parcel of ground that is not properly enclosed on all boundary lines with a substantial fence not less than seven (7) feet nor more than ten (10) feet high and properly screening said enclosed area from public view. Such areas or parcels of land, or premises, shall be enclosed with a solid, nontransparent wall or fence, excepting for entrances and exits. Chain-link fencing is permissible if appropriate slates are inserted into the wire mesh to make the fencing nontransparent. The fence or wall shall not contain any poster or advertising of any kind excepting one sign of the owner, lessee, operator, or licensee of said premises on each street frontage not exceeding one hundred (100) square feet in size. Said seven (7) feet minimum height requirement for fences shall not apply to those storage facilities which are in compliance with section 24-106. (Ord. No. 0-1484, § 1, 4-19-77)

Section 14 ¼-5 of the Code provided that the City could file a petition for abatement in the City Court of Lafayette.

The 1965 Ordinance was repealed and rescinded in 1997, with the Lafayette City-Parish Council adopting Ordinance 0-363-97, which again contained an enclosure requirement at Article IV, Section 14¼-15. The provision contained a more stringent fencing requirement, providing:

No person, firm, or corporation shall store or offer for sale any recyclable items, paper, iron or steel junk, rags or wreckage of motor-driven vehicles or automobiles or trucks, including parts and accessories thereof, and no person, firm, or corporation shall wreck or dismantle said items for commercial purpose on any open lot or parcel of ground that is not properly enclosed on all boundary lines, except where prohibited by any law or regulation, which enclosure shall be by a substantial fence not less than seven (7) feet nor more than ten (10) feet high and properly screening said enclosed area from public view. In such instances where a law or regulation prohibits the complete enclosure on all boundary lines, there shall be substantial compliance by making as much enclosure as possible of the lot or parcel of ground, except as prohibited by any law or regulation. Any decision as to whether or not the enclosure substantially complies shall be made by the Director of Public Works and/or his designee. The fence shall be uniform in color and in height with all material, including posts and fencing, being of uniform height, color and construction. Said fence shall be wind resistant and able to withstand fifty (50) mile per hour winds, constructed of a solid rigid material, and completely non-transparent and of uniform color. The uniform color shall be any shade of beige, brown, black, dark green or gray. The color shall be approved by the Director of Public Works or his designee prior to *1279 installation of the enclosure. Such areas or parcels of land, or premises, shall be enclosed with the aforedescribed solid, non-transparent wall or fence. The fence or wall shall not contain any poster or advertising of any kind excepting one sign of the owner, lessee, operator, or licensee of said premises on each street frontage not exceeding one hundred (100) square feet in size. Said seven-foot minimum height requirement for fences shall not apply to those storage facilities which are in compliance with Section 24-107 of the City of Lafayette Code of Ordinances or any successor provisions in the City-Parish Code of Ordinances.

Section 14 ¼-23 provided for a one-year phase-in period.[2] Article V, Section 14 ¼-26 provided for violations of the chapter to be punishable as a misdemeanor by fine or a period of imprisonment.

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Bluebook (online)
856 So. 2d 1276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafayette-city-parish-consol-v-fitch-lactapp-2003.