City of New Orleans v. Elms

• Decision Date: 31 July 1990
• Docket Number: No. 89-C-1472,89-C-1472
• Citation: 566 So.2d 626
• Parties: CITY OF NEW ORLEANS v. John J. ELMS, Jr., Joyce Elms Benchabbat and Jacques Benchabbat. 566 So.2d 626
• Court: Louisiana Supreme Court

Page 626

566 So.2d 626

CITY OF NEW ORLEANS v. John J. ELMS, Jr., Joyce Elms Benchabbat and Jacques

Benchabbat.

No. 89-C-1472.

566 So.2d 626

Supreme Court of Louisiana.

July 31, 1990.

Rehearings Denied Sept. 5, 1990.

Mack E. Barham, Robert E. Arceneaux, Gail N. Wise, Barham & Associates, Nat G. Kiefer, Jr., for John J. Elms, Jr., et al., defendant-applicant.

William R. Pitts, Cheryl V. Cunningham, Liskow & Lewis, Okla Jones, II, City Atty., Don Hernandez, Chief Deputy City Atty., Kathy lee Torregano, Deputy City Atty., for City of New Orleans, plaintiff-respondent.

LEMMON, Justice. ^*

This is an action by the City of New Orleans to enjoin a violation of the Comprehensive Zoning Ordinance. The principal issue is whether the City is barred by prescription from enjoining defendants' use of their property located in a multiple-family residential district for wedding receptions, private parties and public tours.

In 1969 Mrs. Joyce Benchabbat, one of the owners of the mansion located at 3029 St. Charles Avenue known as the Elms House, began renting the building occasionally for wedding receptions and private parties. The occasional rentals continued until 1983, when Mrs. Benchabbat bought the interests of the other co-owners, renovated the building, and moved into the building as her home. About the same time she began to increase the commercial usage of the property and to offer public tours.

Almost immediately neighbors filed a written complaint with the City's Department of Safety and Permits, and the City notified the owners that this use violated the existing zoning ordinance. When the owners did not cease the commercial use, the City filed this action in November, 1983, seeking to enjoin the owners from operating a business on the property or from otherwise violating the provisions of the zoning ordinance.

Defendants' answer asserted several defenses. One of the defenses was that the right to enjoin the violations had prescribed under La.Rev.Stat. 9:5625 A, which provides a two-year prescriptive period for "[a]ll actions ... which may be brought by parishes, municipalities or their instrumentalities ... to require enforcement of and compliance with any zoning restriction ... imposed by any parish, municipality or their instrumentalities...."

After trial on the rule for a preliminary injunction, the district court determined that the commercial use of the Elms House was a "lawful nonconforming use" which had been in existence for more than two years and could not be restricted by the City.

The court of appeal reversed and ordered a preliminary injunction. 498 So.2d 773. The court determined that defendants had failed to bear the burden of proving sufficient knowledge by the City of a zoning violation so as to begin the running of prescription. The court further held that the property was not entitled to nonconforming use status under the present ordinance because the use, which had begun under an earlier ordinance, was also unlawful under that ordinance. ¹ The case was accordingly remanded to the district court for a hearing on the final injunction.

At the trial on the merits of the final injunction the district court found that defendants had used the property for commercial purposes "on a regular and consistent basis" since 1969 and that the City had actual and/or constructive knowledge of the commercial use because the New Orleans Police Department had furnished uniformed officers for the events held on the property. The court ruled that when the City failed to seek an injunction based on this knowledge, the property acquired nonconforming use status by prescription of two years under La.Rev.Stat. 9:5625.

The court of appeal again reversed, holding that the trial judge's finding of the City's constructive knowledge of a violation which began the running of prescription was manifestly erroneous. 542 So.2d 17. The court reasoned that because defendants failed to prove the police officers were familiar with the zoning laws, the City could not be charged with constructive knowledge of a zoning violation. The court accordingly ordered a final injunction prohibiting defendants from using the premises in violation of the ordinance.

We granted certiorari to determine the appropriateness of the injunction. 548 So.2d 1215.

Zoning is designed to foster improvements by confining certain classes of buildings and uses to certain localities without imposing undue hardship on property owners. 1 E. Yokley, Zoning Law and Practice Sec. 2-2 (4th ed. 1978); Redfearn v. Creppel, 455 So.2d 1356 (La.1984). The essence of zoning is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses, and the uniformity of use within the division. E. Yokley, supra, at Sec. 2-1. The traditional purpose of zoning is to reduce or eliminate the adverse effects of one type of land use on another by segregating different uses into different zoning districts. Redfearn v. Creppel, 455 So.2d 1356, 1360 (La.1984), (citing Village of Euclid v. Amber Realty Co., 272 U.S 365, 387-95, 47 S.Ct. 114, 118-21, 71 L.Ed. 303 (1926)).

Zoning by its nature is a legislative function. Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir.1966); E. Yokley, supra, at Sec. 2-1. La. Const. art. VI, Sec. 16 grants local governing authorities the power to adopt zoning regulations and standards for use of areas and structures subject to procedures established by law. ² La.Rev.Stat. 33;4721 further provides that "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate and restrict ... the location and use of the buildings, structures, and land for trade, industry, residence, or other purposes...." La.Rev.Stat. 33:4723 provides that zoning regulations "shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout the municipality".

The principal regulation which has been utilized to carry out the purposes of zoning is the exclusion of commercial uses from residential districts. ³ Purely business uses are generally excluded from residential districts by simply omitting them from the list of permitted uses. R. Anderson, supra, at Sec. 13.20.

When the occasional commercial leasing of the Elms House began in 1969, the property was included in a multiple-family residential district under the 1953 Comprehensive Zoning Ordinance. ⁴ In 1970 the City enacted a new Comprehensive Zoning Ordinance, under which the Elms House was again included in a multiple-family residential district. ⁵ The 1970 ordinance, which is presently in effect, contained a specific provision in Article 4, Section 5 that uses not listed were prohibited. Use of the Elms House for wedding receptions, private parties and public tours was therefore clearly prohibited by the 1970 ordinance.

Defendants contend, however, that their violations began in 1969, that the City had actual or constructive knowledge of the violations, and that the City's failure to bring an action to enforce the zoning ordinance within two years of the City's first knowledge of the violations bars the present action under La.Rev.Stat. 9:5625 A and entitles their property to nonconforming use status under La.Rev.Stat. 9:5625 B. ⁶

One crucial issue in the present case involves the date when the two-year prescription commenced to accrue. Since La.Rev.Stat. 9:5625 A was amended after the initial use of the property for wedding receptions and private parties, both the original and the amended versions of Section 5625 A must be considered.

When the commercial use of the Elms House began in 1969, Section 5625 A provided in pertinent part as to use violations: ⁷

[W]ith reference to violations of use regulations ... [all actions] must be brought within two years from the date the parish, municipality or their instrumentality first had knowledge of such violation.... (emphasis added).

In 1972 Section 5625 A was amended to provide:

[W]ith reference to violations of use regulations all such actions ... must be brought within two years from the date the parish, municipality and their properly authorized instrumentality or agency if such agency has been designated, first had been actually notified in writing of such violation. (emphasis added).

After the 1972 amendment the City's properly authorized instrumentality did not receive written notice of the violation until 1983, and the suit was filed within a few months. ⁸ Therefore, the critical period for determining the commencement of prescription is the three-year period between 1969 and 1972, when the statute was amended to require actual notice in writing of a violation.

Defendants contend that prescription began to accrue in 1969 when the City first had knowledge of the commercial use. The party pleading an exception of prescription in a zoning enforcement case has the burden of proving that prescription has accrued. City of New Orleans v. Century Management Inc., 442 So.2d 831 (La.App. 4th Cir.1983); Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir.1972), cert. denied, 260 La. 1204, 258 So.2d 552 (1972); Irland v. Barron, 230 So.2d 880 (La.App. 2d Cir.1970). It was therefore necessary for defendants, in order to prevail on their exception of prescription, to prove all of the essential elements for the accrual of prescription under the pre-1972 version of Section 5625 A. The key essential element of proof pertinent to this case was the "knowledge of such violation" by the City. ⁹

As to actual knowledge, there was no proof of written or verbal notice to the City of any violation before 1983, and there were no documents filed with the City or the Department indicating commercial use between 1969 and 1972. Cf. ...