New Orleans Redevelopment Authority v. Johnson

16 So. 3d 569, 2008 La.App. 4 Cir. 1020, 2009 La. App. LEXIS 1404, 2009 WL 2005142
CourtLouisiana Court of Appeal
DecidedJuly 8, 2009
Docket2008-CA-1020
StatusPublished
Cited by4 cases

This text of 16 So. 3d 569 (New Orleans Redevelopment Authority v. Johnson) 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
New Orleans Redevelopment Authority v. Johnson, 16 So. 3d 569, 2008 La.App. 4 Cir. 1020, 2009 La. App. LEXIS 1404, 2009 WL 2005142 (La. Ct. App. 2009).

Opinions

PAUL A. BONIN, Judge.

_JjWesley Taylor, the Chief of Environmental Health for the City of New Orleans, adjudicated the property which is the subject of this expropriation proceeding “blighted” on February 27, 2002.1 Based upon that adjudication, the New Orleans Redevelopment Authority (NORA) instituted these expropriation proceedings in 2005 against the owners of record, Kit-toria Johnson, wife of/and Joseph Burgess, Jr. Keith Doley, the attorney appointed by the court to represent the absentee, Joseph Burgess, Jr., filed an exception contending that the expropriation of this property violated express prohibitions of the Louisiana Constitution. The district court, after a trial on the merits, overruled the exception and authorized the expropriation of the property. For the reasons which follow, we affirm.

I

The subject property, Municipal No. 2034-36-38½ Clouet Street, is a single property consisting of two narrow lots, approximately 62 feet wide by 102 feet deep, located in the Ninth Ward of New Orleans.2 The property was in a [572]*572| ¿residential neighborhood consisting of typically frame double dwellings, raised on piers, or on cement slab foundations. Mr. and Mrs. Burgess had neglected and ultimately abandoned them house on that property. Complaints against the property began in 1991. Grass and weeds grew unmown, and overgrew the sidewalk; debris harbored and invited rats and other pests; an abandoned automobile cluttered the property. While the vacant house was standing (until its demolition by the City) it attracted such illegal activities as drug use, vagrancy, and vandalism.

The City’s Office of Environmental Health handled complaints including those generated by a city council member and the Office of Public Advocacy, arising from reports of a robbery on the property in 1995, and from numerous reports of rat harborage. Since 1996, the Burgesses failed to pay them property taxes. Liens for failure to pay federal income tax, and a lien by a private creditor were filed against the property. Despite a continuing history of notices from the city, fines assessed by the city after its agencies responded to complaints about the property, and bills for the city’s periodic mowing of the weeds in order to control the hazards to public health and safety, the Burgesses did nothing to eradicate the problems afflicting them property. Repeatedly, inspectors observed high grass and rampant weeds, garbage cluttering the lot and sidewalks, a dilapidated vacant building, an abandoned automobile, and reports of crimes at the site.

The house on the Clouet Street property was so dilapidated and hazardous that the City obtained a demolition permit, and the structure was demolished on March 20, 1997, leaving a cement slab amid the weeds and debris.3

| ..¡Ultimately, as the stack of complaints, inspections, returned notices and letters, and issuance of fines and liens grew higher, the City scheduled an administrative hearing pursuant to La. R.S. 13:2575 and 25764 to adjudicate the property to the city.

Before their unexplained abandonment of the property, Mr. and Mrs. Burgess had raised their son, Joseph Burgess III, in the house. They divorced in 1990. Joseph Burgess, Jr., died in 2001. Ms. Burgess did not attempt a community property partition during her husband’s lifetime nor did she take any steps to open his succession as a co-owner in indivisión with the decedent.5 Indeed, no proceedings were filed to open his succession by any interested person.

According to Chief Taylor, the proceedings for enforcement of the blight adjudication began on November 13, 2001, and concluded with a hearing on February 27, 2002. No one representing the Bur-[573]*573gesses appeared. The hearing officer issued a ruling, and pursuant to La. R.S. 13:2575(F) sent notice to the Burgesses as the propei’ty owners of record. No one on behalf of Joseph Burgess, Jr. or Kittoria Johnson Burgess appealed the adjudication of blight as provided by La. R.S. 13:2575 and 2576 whereby a property owner can appeal the hearing officer’s adjudication within thirty days of the decision by filing a petition in Civil District Court for the Parish of Orleans pursuant to La. R.S. 49:964. If that person is aggrieved by a decision or order in an adjudication proceeding, he or she is entitled to judicial review, whether or not he or she has applied to the agency for rehearing. See Rabb v. State Bd. of Certified Public Accountants of La., 04-0586, p. 2 (La.App. 4 Cir. 12/22/04), 893 So.2d 904, 906-07; Joseph C. Canizaro-901 Ltd. Partnership v. State of Louisiana, Dept. of Public Safety, Office of State Fire Marshal, 570 So.2d 56, 61 (La.App. 4th Cir.1990); Granger v. Garrett, 445 So.2d 18, 19-20 (La.App. 4th Cir.1983) (stating that the standard of review is set forth in Hanson v. Louisiana State Racing Comm’n, 436 So.2d 1308, 1309 (La.App.1983), writ denied, 443 So.2d 592 (La.1983), which holds that the scope of review is for abuse of discretion or arbitrary finding on the record).

On July 21, 2005, counsel for NORA wrote to Mr. and Mrs. Burgess by certified mail advising that their property was adjudicated “blighted” and offering three options: that the Burgesses rehabilitate the property to meet all code requirements; that they give the property to NORA as a donation; or that NORA would transfer the property to “new owners” to complete rehabilitation. The certified letter was returned to the City.

II

On April 4, 2007, as authorized by La. R.S. 19:136, et seq. and La. R.S. 33:4720.59, NORA filed a petition in the district court seeking the expropriation of the Clouet Street property, cancellation of liens on the property, notice to the property owners, and a “revisit” on the issue of blight, all in compliance with statutory requirements; and it deposited the “fair market value,” as determined by two appraisers, in the court registry to be paid to the property owners after all fees and costs were deducted by the court. The petition did not seek transfer of the property to any third party.

At the time of the filing of the petition, the total amount of taxes, together with delinquent health violation liens, penalties, and interest was $37,294.60. Two | .^appraisers agreed that the fair market value of the property at the filing of the petition was $10,000 less the $1,500 cost of demolition of the concrete slab, for a fair market value of $8,500. Additional fees and costs of the trial (curator’s fee, court costs, etc.) still remain to be deducted from the balance in the registry of the court.

Service of citation and petition was effected on Ms. Burgess on April 19, 2007. She did not answer the lawsuit. Although she was a co-owner in indivisión of the property, she failed to file responsive pleadings within fifteen (15) days as required pursuant to La. C.C.P. art. 1001, and La. R.S. 19:6 and 19:7, thus relinquishing her legal rights to appeal any expropriation of the property. The district court entered an order on May 8, 2008, granting the motion in limine filed by NORA, ruling that Ms. Burgess’ failure to file an answer within fifteen days of service of the petition “constitutes a waiver of all defenses to the suit except claims for money as compensation for the property sought to be expropriated and claims for money as damages to other property.”

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New Orleans Redevelopment Authority v. Johnson
16 So. 3d 569 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
16 So. 3d 569, 2008 La.App. 4 Cir. 1020, 2009 La. App. LEXIS 1404, 2009 WL 2005142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-orleans-redevelopment-authority-v-johnson-lactapp-2009.