Zaveri v. Husers

224 So. 3d 389, 16 La.App. 3 Cir. 866, 2017 WL 2672307, 2017 La. App. LEXIS 1145
CourtLouisiana Court of Appeal
DecidedJune 21, 2017
Docket16-866; 16-867
StatusPublished
Cited by4 cases

This text of 224 So. 3d 389 (Zaveri v. Husers) 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
Zaveri v. Husers, 224 So. 3d 389, 16 La.App. 3 Cir. 866, 2017 WL 2672307, 2017 La. App. LEXIS 1145 (La. Ct. App. 2017).

Opinion

KEATY, Judge.

hThe matter at issue in these consolidated appeals arose after Mukesh and Kailash Zaveri built a large retaining wall between their lot and the neighboring lot of Denis and Linda Husers in conjunction with the Zaveri’s construction of a residence on Prien Lake in Lake Charles, Louisiana. Following a bifurcated trial, judgment was rendered in favor of the Husers and against the Zaveris, Champion Custom Home Builders, LLC (Champion), and The City of Lake Charles (the City), in varying amounts. Thereafter, the Zaveris, the Hus-ers, and Champion filed Motions for Judgment Notwithstanding the Verdict (JNOV), all of which were denied. The Zaveris appealed, and the Husers answered that appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

The Zaveris purchased a partially developed lot at 3608 West Prien Lake Road in October 2005. The prior owners of the lot had built a bulkhead, wharf, and boathouse on the lake, and they had brought in some dirt to create a pad for a home which they intended to build at a later date. The front of the Zaveris’ and Husers’ lots had elevations of ten feet above sea level at the road and declined to sea level at the lake at the rear of the properties. The Husers have resided in their -current house since 1994. Between then and the time the Zaveris purchased their lot in 2005, several hurricanes had struck the Lake Charles area and the Federal Emergency Management Agency (FEMA) required that all new homes be constructed at least ten feet above the base flood elevation.

The Zaveris hired a Texas architect to draw plans to build a house consisting of approximately 8,000 square feet of living area with just less than 12,000 square lafeet under the roof. The plans included the creation of a three-sided retaining wall (the wall) which grew in height as it neared the lake to contain the dirt needed to achieve a level surface upon which to build the house. The Zavaris contracted with R-Mac Engineering Company, Inc. (R-Mac), a structural engineering firm based in Texas, to design the foundation and framing of the house, wall, and driveway. Although not licensed as such, Mr. Zaveri (Zaveri) was allowed to act as his own general contractor under a provision of Louisiana law which allows an individual to serve as the builder/contractor for a house he will maintain as a personal residence.2

[393]*393Zaveri submitted site plans and a FEMA Elevation Certificate to the City-Planning Department and received a Certificate of Zoning and Land Use Compliance (the zoning certificate) on May 24, 2006. The zoning certificate was issued by Doug Burguires, the City’s Director of Planning and Development. By signing the zoning certificate, Zaveri certified that all construction of his residence “will be in strict compliance with all zoning codes and regulations adopted by the City.” Building Permit 06-3526 (the permit) was issued to Zaveri on May 24, 2006, and construction began soon thereafter. Throughout the construction project (the project), Zaveri consulted regularly with his close friend, Mike Adalas, a general contractor licensed in Texas with twenty-five-plus years of experience and the principal owner of Champion, a company specializing in the construction of large, custom homes.

The first stage of the project involved construction of a retaining wall which, as originally designed by R-Mac, resembled an upside down T, with “toes” on either side of the vertical wall. By the time construction began, however, Zaveri |shad altered the design to remove the toe on the Husers’ side of the wall which allowed the wall to be installed closer to the property line. Upon realizing the size and magnitude of the wall, which measured ten feet tall at its highest point near the lake, the Husers contacted the City to express their concerns that the permit was improperly issued because the project violated several of the City’s zoning ordinances. In early November 2006, the Husers and the Za-veris met with the City Attorney in an attempt to address the Husers’ complaints, to no avail. The Planning and Zoning Commission of the City of Lake Charles (the Commission) also reviewed the Husers’ complaints and determined that the Zaver-is’ permit had been properly issued. Zaveri filed a revised site plan with the City, and while Mr. Burguires issued a second zoning certificate to Zaveri on November 28, 2006, he made the following notation on the Remarks or Special Conditions section of the form: “Revised Site Plan Exceeds Min Building Setbacks.”

The Zaveris filed a Petition for Declaratory Relief (the Petition) against the Hus-ers on November 30, 2006, acknowledging that a conflict existed concerning the “appropriateness” of their construction project and requesting that the trial court render judgment “declaring the structure to be built pursuant to the plans to be not in violation of any Code provision or ordinance of the City of Lake Charles, thus allowing a reasonably prompt completion of the construction.”

On January 5, 2007, the Husers filed an Answer, Third Party Demand, and Recon-ventional Demand. In answer to the Petition, the Husers alleged that the Zaveris had committed multiple violations of City codes and ordinances, including those related to setbacks and bufferyards. The Husers submitted that the Zaveris would suffer no hardship and that the need for a retaining wall would be eliminated if the Zaveris minimized the size of their planned front yard from “over 134 feet” 14to “closer to the 30 foot minimum.” The Husers’ Third Party Demand named the City and requested a declaratory judgment stating that the Zavaris’ permit application sought approval for construction that violated zoning ordinances and thus the permit was violative of zoning ordinances. The Husers sought permanent prohibitory injunctive relief enjoining the City from violating its zoning ordinances “by refusing to withdraw, cancel or revoke” the permit and by “failing to order Zaveris to remove all improvements erected ... in violation of the Zoning Ordinances.” The Husers sought damages against the City for the costs to mitigate their losses, costs to mon[394]*394itor the retaining wall for potential failure, the stigma and loss of value to their property, the loss of a tree, loss of enjoyment of life and property, and past and future mental anguish. Finally, the Husers’ Re-conventional Demand against the Zavaris sought a declaratory judgment stating that their building permit was improperly issued by the City because the construction and developments made and/or sought to be made on the property were violative of several zoning ordinances.3 Due to the Zaveris’ actions, the Husers sought damages against them identical to those they sought from the City.

Later, in March 2007, the Husers filed a Petition for Certiorari and Review (the Husers Petition) naming as defendants the City, the Commission, and the Zaveris, requesting that the trial court overturn the Commission’s denial of the Husers’ appeal of the City’s decision to issue a zoning certificate and á building permit to the Zaveris. In an Order dated April 25, 2007, the Petitions filed by the Zaveris and the Husers were consolidated by the trial court.

| jn November 2007, the Husers added Champion as an additional third party defendant. In a supplemental reconventional demand filed in May 2008, the Husers claimed that the Zaveris’ construction violated La.Civ.Code art. 667,4

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
224 So. 3d 389, 16 La.App. 3 Cir. 866, 2017 WL 2672307, 2017 La. App. LEXIS 1145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zaveri-v-husers-lactapp-2017.