City of New Orleans v. Elms

• Decision Date: 14 March 1989
• Docket Number: No. 88-CA-0824,88-CA-0824
• Citation: 542 So.2d 17
• Parties: CITY OF NEW ORLEANS v. John J. ELMS, Jr., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 17

542 So.2d 17

CITY OF NEW ORLEANS v. John J. ELMS, Jr., et al.

No. 88-CA-0824.

Court of Appeal of Louisiana Fourth Circuit.

March 14, 1989.

Rehearing Denied May 17, 1989.

Okla Jones, II, City Atty., Don J. Hernandez, Chief Deputy City Atty., Kathy Lee Torregano, Deputy City Atty., New Orleans, for plaintiff-appellant.

William R. Pitts, Cheryl V. Cunningham, Liskow & Lewis, New Orleans, for intervenors/appellants.

Nat G. Kiefer, Jr., New Orleans, for defendants-appellees.

Before BARRY, ARMSTRONG and BECKER, JJ.

ARMSTRONG, Judge.

Plaintiff, the City of New Orleans (the "City"), and intervenors, the St. Charles Avenue and Garden District Associations, appeal from a judgment in favor of defendants, John J. Elms, Jr., Joyce Elms Benchabbat, and Jacques Benchabbat, maintaining defendants' exception of prescription and dismissing plaintiff and intervenors' suits to enjoin defendants from operating a party and reception business in a residence located at 3029 St. Charles Avenue in the City of New Orleans.

This case is before us for the second time. The City originally instituted this action in November, 1983, claiming that defendants' commercial use of the property, hereinafter referred to as the "Elms House," for parties and receptions was in violation of the City's Comprehensive Zoning Ordinance of 1970, (the "1970 CZO"). The two property owners associations later intervened seeking the same relief as the City.

At the first trial the court found that the City's action had prescribed under the two-year limitation provided by La.R.S. 9:5625, as in effect until July 21, 1972, and that the property enjoyed a legal non-conforming use status. In City of New Orleans v. Elms, 498 So.2d 773 (La.App. 4th Cir.1986), this court reversed the judgment of the trial court, finding that the City's suit was timely filed since the City first acquired the requisite knowledge of the zoning violation, under La.R.S. 9:5625 as amended and effective July 26, 1972, in May 1983. We also found that the Elms House had not acquired a legal non-conforming use status.

After reversing the trial court judgment and granting the City and intervenors a preliminary injunction, we remanded the case to the trial court for a hearing to convert the preliminary injunction into a permanent one. After remand, and another hearing where further testimony was heard, the trial court again found that the City's action had prescribed under La.R.S. 9:5625 (as in effect through July 25, 1972) and the property had acquired a legal non-conforming use status.

The Elms House is a large home located at 3029 St. Charles Avenue. Under the 1970 CZO the property is zoned "RM-3", multiple family residential district. Sometime in 1969 defendants began operating a commercial party and reception hall business. Commercial tours of the mansion were also given. Joyce Elms Benchabbat was the only defendant to testify at trial and at present she is apparently the sole owner of the Elms House and operates the business. It is undisputed that the use of the mansion for these purposes is in violation of the 1970 CZO.

As it existed prior to July 26, 1972, La.R.S. 9:5625 provided that a municipality had two years to bring an action to enforce compliance with its zoning laws. In cases involving a regulatory use violation, such as the one at bar, the two-year prescriptive period ran from the date "the parish, municipality or their instrumentality first had knowledge of such violation ..." In 1972 the legislature amended the statute to provide that the prescriptive period would run from the date the municipality and their "properly authorized instrumentality" or "designated" agency was first "actually notified in writing of such violation."

The City's suit was filed on November 18, 1983 after the Department of Safety and Permits was first notified in writing of the use violation in May, 1983. Clearly, the suit was timely filed under the current provisions of La.R.S. 9:5625. Defendants argue, however, that the pre-1972 version of the statute is applicable. They contend that the City or its instrumentality had knowledge of the use violations ¹ beginning sometime between 1969, when they began using the mansion on a commercial basis, and July 26, 1972. Their argument is based upon the testimony of three New Orleans police officers who worked off-duty security details at the mansion during that period, and a provision of the Comprehensive Zoning Ordinance of 1953 (the "1953 CZO") which was in effect until August 1, 1970 when the 1970 CZO took effect.

Article XXXI, Section 1 of the 1953 CZO states:

"It shall be the duty of the Director of Regulatory Inspections to enforce this Ordinance. It shall also be the duty of all officers and employees of the City, and especially of all members of the Police Department, to assist the Director by reporting to him upon new construction, reconstruction, or land uses, or upon seeming violations."

The 1970 CZO contains no such clause.

Old La.R.S. 9:5625 refers to knowledge by a municipality or its "instrumentality." Defendants apparently interpret instrumentality to include police officers. We disagree, feeling that the instrumentality is the Director of Regulatory Inspections, who is authorized to enforce the Ordinance. See Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir.1972), writ denied, 260 La. 1204, 258 So.2d 552 (1972). Otherwise it would follow that knowledge by a sanitation worker--an employee of the City--would be sufficient to commence the running of prescription. But we agree that knowledge of the zoning violations by the Director of Regulatory Inspections would have been sufficient to commence the running of prescription.

Defendants argue, and the trial court found, that the City or its instrumentality had actual or constructive knowledge of the zoning violation(s). This is incorrect. There is no evidence in the record that the City or the Director of Regulatory Inspections had actual or constructive knowledge of any zoning violations by the defendant.

The dispositive issue is whether any knowledge of the zoning violations could have been imputed to the Director of Regulatory Inspections by virtue of any actual or constructive knowledge possessed by the three police officers.

All three of the police officers had retired from the New Orleans Police Department at the time of trial. Officers Paul C. Fleming and Stephen Bordelon testified at the second trial and the deposition of Lt. Ernest M. Simoneaux, Sr. was introduced in evidence. The three officers had worked off-duty security details at the Elms House during the years 1969-1972. All three wore their official police uniforms while working these details. They were hired to provide security for the various functions, keep unauthorized persons out of the functions, and watch the invitees walk to their automobiles.

The officers were paid directly by Ms. Benchabbat and no portion of their salary went to the New Orleans Police Department or the City. A person or business desiring to hire a police officer for an off-duty security detail could contact either the individual police officer or the personnel department. The officer had to report the detail to his commanding officer or the personnel department. He had to give the district in which the detail was to be worked, the municipal address, the number of hours to be worked, and the type of function. The police department had the authority to deny the officer the right to work the detail, but according to Lt. Simoneaux, "they never did." There was apparently just a "rubber stamp" approval.

Officer Fleming first worked a detail at the Elms House during the 1969 Mardi Gras season. He worked two or three wedding receptions after that, the last in late 1972 or 1973. Fleming was under the impression that Ms. Benchabbat was being paid for these events because she had large sums of money at the conclusion of them. He thought she was operating a business in her residence but testified that it "never entered his mind" that it was a zoning violation or that she was operating illegally.

Officer Bordelon first worked a security detail at the Elms House sometime in 1970, for a carnival function. He worked another detail at a wedding reception in mid-summer, 1971, and thought he worked two or three more after that. It was his impression that Ms. Benchabbat was operating a commercial business in the residence. When asked if there seemed to be a zoning violation, he replied that it seemed out of place but "it wasn't his place" to check into zoning violations. Questioned by the court as to whether he had any idea that the property had a non-conforming use or whether Ms. Benchabbat had permits, Bordelon replied, "No I wasn't required to check anything like."

In his deposition Lt. Ernest M. Simoneaux, Sr. stated that he worked details at the Elms House from 1969-1972. He confirmed that during this period he worked approximately fifty to one hundred details per year at the mansion. ² Because he saw people pay her, he said he knew Ms. Benchabbat was charging fees for the use of her premises. He knew that she was operating a business but never personally observed any type of contract negotiations. When asked if such use of the residence was in violation of a zoning ordinance Simoneaux answered,

"It certainly came to mind to me that it was, but being a native Orleanian I went along, I was paid to do a detail there, and I didn't think anymore about it, I was--well, in my mind it was more or less a violation."

He did not report his suspicion to anyone because he said,

"I had no occasion. Nobody questioned that ... It's just a simple detail like anybody else, walking behind a float at carnival or being at a party, dance, sorority hop."

He further stated,

"there wasn't a question in my mind this was, I don't think, [sic] that it could be wrong. It never-nobody else done [sic] anything about it. I'm working a detail and making...