Rodrigue v. Copeland

475 So. 2d 1071
Supreme Court of Louisiana·Decided September 10, 1985·No. 85-C-0484·Published·Cited by 29 cases

Opinion

475 So.2d 1071 (1985)

Herbert RODRIGUE, Burton G. Klein and Mary Borrell
v.
Alvin C. COPELAND and Popeye's Famous Fried Chicken, Inc.

No. 85-C-0484.

Supreme Court of Louisiana.

September 10, 1985.

*1072 Cecil M. Burglass, Jr., New Orleans, for plaintiff-applicant.

Peter Butler, New Orleans, for defendant-respondent.

DIXON, Chief Justice[*].

Plaintiffs, three residents of the Pontchartrain Shores Subdivision in Jefferson Parish, instituted this action to enjoin defendant, Alvin C. Copeland, from erecting and operating his annual Christmas display. The plaintiffs sought injunctive relief under C.C. 667-669 due to problems associated with an enormous influx of visitors to their limited access, residential neighborhood.

The preliminary injunction was denied by the trial judge on December 15, 1983. After trial of the permanent injunction, the trial court, on August 31, 1984, denied the permanent injunction, but also ordered the defendant to limit the exhibition to thirty days and to deactivate the display at 11:00 p.m. nightly. Relief was otherwise denied. The court of appeal affirmed the denial of injunctive relief and further held that the trial court's restrictions were not obligatory on the defendant, but were "parameters" within which defendant could "operate", but "if he operates outside of those *1073 parameters, his display could be ... declared a nuisance in fact and, hence, abated." Rodrigue v. Copeland, 465 So.2d 67, 72 (La.App.1985).

Since 1977 defendant has annually maintained a Christmas display on his premises at 5001 Folse Drive. The display has grown in size and popularity since the year of its inception. The display consists of an extravagant array of lights and lighted figures accompanied by traditional Christmas music.

The neighborhood is a limited access area which is zoned solely for single family residences. Defendant's premises, which front on Folse Drive, are bounded to the north by the Lake Pontchartrain levee, to the east by a public right-of-way and to the west by the residence of plaintiff Mary Borrell. (See appendix for map of the neighborhood).

Since 1982 defendant's exhibition has drawn numerous spectators to the neighborhood during the hours while the display is in operation. The spectators view the display either from their automobiles or on foot after parking their vehicles in the surrounding neighborhood. The increased congestion in the neighborhood has created numerous problems for some of the defendant's neighbors such as restricted access to their homes, noise, public urination, property damage and a lack of on-street parking.

The plaintiffs[1] commenced the present action on November 30, 1983. They prayed for an injunction restraining defendant or his agents from erecting or activating the display.

On December 1 the Parish of Jefferson also sought injunctive relief to prevent Copeland from maintaining his display. The parish alleged that defendant was in violation of the Jefferson Parish Code of Ordinances and the Comprehensive Zoning Ordinance. The primary basis for this suit was the alleged presence of decorations and other structures on parish property adjoining 5001 Folse Drive.

The two suits were consolidated and a hearing was set for December 6, 1983. Prior to the hearing, the trial judge visited the site of the display on December 3. On that same day a pretrial conference, attended by counsel and two representatives of the Jefferson Parish Sheriff's Office, was held at the home of the trial judge.

The hearing on the preliminary injunction commenced on December 6, 1983. Harry Lee, the Sheriff of Jefferson Parish, testified that his office had devised a plan which would facilitate a smoother flow of traffic in the neighborhood. The plan was to go into effect each night while the display was in operation. Under the plan, the traffic was to be directed down Transcontinental Drive in a northerly direction toward the display. The right-hand, northbound lane of Transcontinental was to be blocked off and reserved for use by emergency vehicles. Once the automobiles reached the intersection of Folse and Transcontinental, they would be required to turn left on Folse or make a U-turn onto the southbound lanes of Transcontinental. Under the plan, Folse was to be redesignated as a westbound, one-way street and westbound vehicles on Folse were to be permitted to pass in front of the display.

The sheriff testified that the plan would require the services of seven deputies. Two of the deputies were to patrol the Transcontinental neutral ground on horseback while the others were to direct traffic. Two or three portable toilets were to be placed on the neutral ground in order to control the problem of urination on property of nearby residents. Two motor scooters were to be stationed at the site for use in medical emergencies.

The sheriff also testified that residents of the area would be given identification placards which, upon being displayed to on duty deputies, would allow them to obtain access to their homes. In order to combat the litter problem, the sheriff suggested the deployment of prison "trustees" to pick up trash each morning. He also contemplated *1074 the use of a forty passenger bus to transport visitors to and from the display.

Katherine Knight, a practicing pediatrician and director of pediatrics at Charity Hospital, testified that she resides at 4624 Transcontinental, three blocks from the display. She stated that the southbound traffic on Transcontinental was constant and speedy while the exhibition was in operation. She claimed that her driveway had been obstructed by the autos of visitors to the site and she had trouble backing out of her driveway. On one occasion, while she was "on call," it took her an additional thirty minutes to reach Charity Hospital as a result of the traffic. She also complained that her own Christmas displays were stolen and her family was constantly harrassed by people wishing to use the facilities in her home. Finally, she expressed regret that her children were unable to have their friends over during the Christmas season due to the traffic.

The hearing was recessed and continued until December 13. In the interim, on December 10, the plan delineated by the sheriff went into effect. Upon resumption of the hearing on December 13, Colonel Roy Jacobs testified regarding the effectiveness of the plan. He stated that since the plan went into effect, traffic moved more smoothly and there had been no reports of trash or drunkenness. However, according to Jacobs, the traffic was very heavy on Saturday, December 10.

The plaintiffs and two other witnesses testified regarding the damage and inconvenience caused by the display. They testified that the traffic was very heavy even after implementation of the sheriff's plan. Burton Klein and Edward Hernandez both testified that they spent an inordinate amount of time getting home from work as a result of the traffic. Klein testified that the westbound traffic on Folse Drive had been backed up as far as Clearview, thirteen blocks from the display.

According to Hernandez, who resides at 4733 Transcontinental Drive, he has spent fifteen minutes getting out of his driveway during the peak hours of traffic. Klein and Hernandez also testified that they were unable to have friends over or have parties since access to their houses was limited and parking was not available. The witnesses also complained of loud noises from a combination of sources such as the crowd in front of defendant's house, music from his loudspeakers, slamming of car doors and car horns.

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Rodrigue v. Copeland, 475 So. 2d 1071 (La. 1985).

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