Williams v. Parish of St. Bernard

49 So. 3d 520, 2010 La.App. 4 Cir. 0397, 2010 La. App. LEXIS 1377, 2010 WL 3993705
CourtLouisiana Court of Appeal
DecidedOctober 13, 2010
DocketNo. 2010-CA-0397
StatusPublished
Cited by7 cases

This text of 49 So. 3d 520 (Williams v. Parish of St. Bernard) 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
Williams v. Parish of St. Bernard, 49 So. 3d 520, 2010 La.App. 4 Cir. 0397, 2010 La. App. LEXIS 1377, 2010 WL 3993705 (La. Ct. App. 2010).

Opinions

CHARLES R. JONES, Judge.

_jjThe Appellant, Vernon Williams, appeals the judgment of the Thirty-Fourth Judicial District Court dismissing his Application for Writ of Mandamus for failure to resume a nonconforming use within six months of its discontinuance. For the reasons set forth below, we reverse.

Vernon Williams (“Mr.Williams”) owned and operated V.J.’s Hollywood Lounge (“V.J.’s”) in St. Bernard Parish (“SBP”) until March 15, 2005. V.J.’s is located in a C-l neighborhood commercial zoning district. When V.J.’s began operating, bars and lounges were permitted to conduct business in C-l neighborhood commercial zoning districts. However, SBP changed its’ zoning laws requiring bars and lounges to be located in C-3 zoning districts. V.J.’s was grandfathered in and thus, was permitted to continue operating in a C-l commercial zoning district. Pursuant to paragraph 9 of Section 22-8 of the SBP Code of Ordinances, V.J.’s would have to obtain a zoning change to legally resume operations if it ceased to operate for six months.

On March 15, 2005, SBP suspended Mr. Williams’ liquor permits for six months, pursuant to Chapter 3, Section 3-26(f) of the SBP Code of Ordinances. Mr. Williams timely instituted the appeals process. Approximately three years |2later, this Court reversed the suspension of Mr. Williams’ permits citing due process violations. See Williams v. Parish of St. Bernard, 2007-1316 (La.App. 4 Cir. 5/28/08), 984 So.2d 937.

Pending the resolution of the initial appeal, Hurricane Katrina struck and destroyed V.J.’s. After this Court’s judgment [523]*523reversing the suspension of the liquor permits became final, Mr. Williams began restoring VJ.’s. SBP issued a “cease and desist” order for illegal construction. Mr. Williams applied for and was granted a temporary restraining order enjoining SBP from preventing the repair and restoration of V.J.’s based on any alleged loss of nonconforming use.

Mr. Williams subsequently applied for a building permit for an existing structure to be restored as a neighborhood bar. The permit was issued on October 29, 2008, and it indicated that it was valid for six months. Mr. Williams completed the restoration of the building and attempted to apply for a new alcoholic beverage permit with the SBP Alcoholic Beverage and Bingo Department (ABBD) on May 27, 2009. The ABBD, however, would not accept an alcoholic beverage permit application without a zoning approval form. A zoning approval form may be obtained after a zoning compliance application form is submitted to the SBP Office of Planning and Zoning. On the same day, an attorney for SBP informed counsel for Mr. Williams that Mr. Williams, doing business as V.J.’s Hollywood Lounge, lost his nonconforming use due to voluntary abandonment. This adverse determination precluded the scheduling of subsequently required building inspections by the Department of Community Development. Furthermore, an alcoholic beverage permit application would not be accepted without a zoning approval form.

_JjMr. Williams filed an Application for Writ of Mandamus requesting SBP be ordered to issue all necessary permits and licenses required for the reconstruction of V.J.’s, and the resumption of operations as a legal nonconforming use as a neighborhood bar. The Thirty-Fourth Judicial District Court dismissed Mr. Williams’ claims finding that Mr. Williams failed to resume his nonconforming use within six months of its discontinuance.

Mr. Williams appeals the decision of the district court arguing the district court erred in holding that the appellant only had six months within which to restore a nonconforming building following a disaster. He also argues the district court erred in failing to apply Louisiana Revised Statute 38:4882, which was enacted to apply to nonconforming uses damaged by Hurricanes Katrina and Rita.

The issues in this case involve the interpretation of paragraphs nine and six of Section 22-8 of the SBP Code of Ordinances, and Louisiana Revised Statute 33:4882. The proper interpretation of a statute is a question of law and is, thus, reviewed by this Court under a de novo standard of review. Oliver v. Allstate Ins. Co., 2007-1434 (La.App. 4 Cir. 8/6/08), 991 So.2d 566, 568 (citing Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045).

In his first assignment of error, Mr. Williams argues that the district court erred in holding that he only had six months from the date the decision of this Court became final to restore VJ.’s, a nonconforming building, following a disaster. SBP argues that Mr. Williams is confusing the requirements for restoring a nonconforming building with those associated with a nonconforming use of property.

|4The Louisiana Supreme Court described a nonconforming use of property as “[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated ...” Redfearn v. Creppel, 455 So.2d 1356, 1358 (La.[524]*5241984). Furthermore, this Court has explained that:

A legal nonconforming use is “designed to protect those uses which were established before the enactment of a restrictive zoning regulation.” Since a nonconforming use is inconsistent with the purpose of zoning ordinances, decisions regarding such status should be viewed narrowly with all doubt resolved against continuation or expansion of the nonconforming use. However, this principle should [not] be confused with the principle that a zoning ordinance, being in derogation of the rights of private ownership, must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property.

Cordes v. Bd. of Zoning Adjustments, 2009-0976, p. 10 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 510-11 (citations omitted). A nonconforming building, on the other hand, is a structure that predates the current zoning ordinance and fails to meet the proper floor area, open space, and setback requirements. Cordes, 2009-0976, p. 12, 31 So.3d at 512.

There are two relevant provisions in Section 22-8 of the SBP Code of Ordinances, paragraphs nine and six. Paragraph 9 of Section 22-8, entitled “Discontinuance,” provides:

Discontinuance. Whenever a building or land used in whole or in part for a nonconforming purpose becomes and remains vacant for a continuous period of six (6) months, or when the operations normally carried on in such a building or on such land have been discontinued for a period of six (6) months, such nonconforming use 1 Bshall not thereafter be reestablished and any future use shall be in conformity with the provisions of this chapter.

The restoration of nonconforming buildings after an Act of God, natural disaster, or fire is governed by paragraph 6 of Section 22-8, which states:

Restoration. A legally nonconforming building destroyed by fire, storms, or other acts of God or a public enemy may be repaired or rebuilt, provided the restoration is accomplished with no increase in cubical content and no increase in floor area over the building existing immediately prior to damage.

The section under which both paragraphs appear is entitled “Nonconforming Uses.” Mr.

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Bluebook (online)
49 So. 3d 520, 2010 La.App. 4 Cir. 0397, 2010 La. App. LEXIS 1377, 2010 WL 3993705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-parish-of-st-bernard-lactapp-2010.