Sassone v. HARTEL ENTERPRISES, LLC

981 So. 2d 923, 2008 WL 1886798
CourtLouisiana Court of Appeal
DecidedApril 30, 2008
Docket2008-166
StatusPublished

This text of 981 So. 2d 923 (Sassone v. HARTEL ENTERPRISES, LLC) 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
Sassone v. HARTEL ENTERPRISES, LLC, 981 So. 2d 923, 2008 WL 1886798 (La. Ct. App. 2008).

Opinion

981 So.2d 923 (2008)

Martha Elizabeth SASSONE
v.
HARTEL ENTERPRISES, L.L.C., et al.

No. 2008-166.

Court of Appeal of Louisiana, Third Circuit.

April 30, 2008.

*924 Thomas G. Wilkinson, Philip A. Gattuso, Gretna, LA, for Defendants/Appellees, Louis Savoye, Department of Code Enforcement and the Parish of Jefferson.

Thomas W. Milliner, Brian J. Burke, Metairie, LA, for Plaintiff/Appellant, Martha Elizabeth Sassone.

Coleman D. Ridley, Jr., Joshua J. Lewis, Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P., New Orleans, LA, for Defendant/Appellee, Hartel Enterprises, L.L.C.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

This case involves a zoning dispute between two commercial property owners. The plaintiff-appellant, Martha E. Sassone, filed a suit for judicial review against the defendants-appellees, Hartel Enterprises, L.L.C., and Louis Savoye, the Jefferson Parish Director of the Department of Inspection and Code Enforcement (DICE). Judicial review was sought after the Board of Zoning Adjustments (BZA) determined that Hartel's planned fitness facility was a "permitted" use under the zoning code and granted Hartel a parking variance for fewer spaces than the code required. Sassone appealed the BZA decision to the district court in Jefferson Parish, and the district court affirmed the BZA decision. For the following reasons, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court erred in affirming the BZA decision that the planned fitness facility is a "permitted" use under the zoning code; and
(2) whether the trial court erred in affirming the parking variance granted by the BZA.

II.

FACTS AND PROCEDURAL HISTORY

Sassone is the owner of the Salon Selonj at 105-107 Aris Street in Metairie, Louisiana, which is located in the immediate vicinity of 601 Frisco Avenue in Jefferson Parish. Hartel submitted plans to convert the Frisco Avenue property from its current use as Gulf Optical, employing over twenty (20) people during normal business hours, to a small franchise fitness studio called Snap Fitness, which will be run by one employee at a time and will be open twenty-four hours a day, seven days a week. The BZA determined that a fitness studio was a permitted use in the commercially zoned district at issue, and that the 4,800 square foot facility planned would require twenty-four (24) parking spaces. The plan indicated only fourteen (14) parking spaces. Hartel requested a variance to ten (10) spaces, which was granted. Sassone appealed the BZA decision and now appeals the district court's affirmance of that decision.

*925 III.

LAW AND DISCUSSION

Standard of Review

A prima facie presumption of validity attaches to zoning board actions, and a reviewing court cannot substitute its own judgment for that of the board. The reviewing court cannot interfere absent a showing by the appellant that the board was arbitrary and capricious or that the board abused its discretion. On appeal, the person who opposes a zoning board's decision bears the burden of proof that the decision was arbitrary, capricious, and unreasonable. Parish of Jefferson v. Davis, 97-1200, 97-1201 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, writ denied, 98-2634 (La.12/11/98), 730 So.2d 460; Cerminaro v. Jefferson Parish Zoning Appeals Bd., 02-1041 (La.App. 5 Cir. 2/11/03), 838 So.2d 193.

Permitted Use

The area containing the commercial property of the parties is zoned C-1, Neighborhood Commercial District. The building, lot, parking and other requirements of all zoning districts are provided for in Chapter 40 of the Comprehensive Zoning Ordinance (CZO). The section pertaining to the C-1 Neighborhood Commercial District is located in Article XIX of Chapter 40 of the CZO and stated, prior to its recodification on December 12, 2007, in pertinent part as follows (emphasis ours):

Article XIX. Neighborhood Commercial District C-1

Sec. 40-321. Description.

This district is composed of certain lands and structures used primarily to provide for the retailing of goods and the furnishing of selected services . . . .

Sec. 40-322. Permitted uses.

In C-1 districts only the following uses of property shall be permitted:
(1) Any existing stand-alone residential use. . . .
(2) A residential dwelling shall be permitted only in the main structure containing non-residential uses permitted. . . .
(3) Apartment hotel.
(4) Bakeries, retail. . . .
(5) Banks, including drive-in banks.
(6) Barber shops and beauty shops.
(7) Board and care home. . . .
(8) Catering and delicatessen business.
(9) Cemeteries. . . .
(10) Clinic, medical, dental, chiropractic, or an establishment operated by a massage therapist. . . .
(11) Clubs and lodges.
(12) Copying service.
(13) Custom dressmaking, millinery, tailoring or similar retail trades employing not more than five (5) persons. . . .
(14) Dry cleaning and laundries . . . said business not to employ more than five (5) persons on the premises.
(15) Elderly housing and assisted living facility. . . .
(16) Filling stations.
(17) Funeral homes, mortuaries, and crematories.
(18) Government structures and land.
(19) Parking garages, including parking lots.
(20) General retail stores and establishments having a gross floor area of not more than twenty-five thousand (25,000) square feet, or twelve (12) percent of the total area of the commercial shopping center in which the retail store or establishment is located, whichever is larger.
(21) Convalescent and nursing homes.
*926 (22) Institutions, but not to include chemical dependency units and penal, correction or mental institutions.
(23) Laundromats.
(24) Libraries, museums, community centers. . . .
(25) Locker plants, renting lockers for storage of food.
(26) Nurseries and flower gardening.
(27) Nursery schools, pre-schools, and kindergartens. . . .
(28) Offices . . . not exceeding thirty thousand (30,000) square feet in one (1) building. . . .
(29) Public utility structures. . . .
(30) Publishing without printing.
(31) Recreational uses.
(32) Schools.
(33) Shops, light repair, employing not more than five (5) persons on the premises.
(34) Stores, retail having a gross floor area of not more than twenty-five thousand (25,000) square feet. . . .
(35) Taxi stands and stands for public transit vehicles.
(36) Accessory buildings and uses customarily incidental to the above uses, . . . .
(37) Animal hospitals and veterinary clinics. . . .

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Related

Cerminaro v. JEFFERSON PARISH ZONING
838 So. 2d 193 (Louisiana Court of Appeal, 2003)
Parish of Jefferson v. Davis
716 So. 2d 428 (Louisiana Court of Appeal, 1998)
Copenhaver v. John Bonura & Co.
2 La. App. 5 (Louisiana Court of Appeal, 1925)

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Bluebook (online)
981 So. 2d 923, 2008 WL 1886798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sassone-v-hartel-enterprises-llc-lactapp-2008.