Hammons v. East Baton Rouge Parish, Dept. of Public Works, Permit Div.

• Decision Date: 28 December 1984
• Docket Number: No. 83,83
• Parties: A.W. HAMMONS, et al. v. PARISH OF EAST BATON ROUGE, DEPT. OF PUBLIC WORKS, PERMIT DIVISION and Board of Adjustments. CA 1389. 461 So.2d 1225
• Court: Court of Appeal of Louisiana — District of US

Page 1225

461 So.2d 1225

A.W. HAMMONS, et al. v. PARISH OF EAST BATON ROUGE, DEPT. OF PUBLIC WORKS, PERMIT

DIVISION and Board of Adjustments.

No. 83 CA 1389.

461 So.2d 1225

Court of Appeal of Louisiana,

First Circuit.

Dec. 28, 1984.

Joel Dickinson, Baton Rouge, for plaintiffs-appellants.

A. Foster Sanders, III, Baton Rouge, for defendant-appellee.

Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON ^*, JJ.

JOHN S. COVINGTON, Judge Pro Tem.

Plaintiffs, four individuals purportedly constituting a committee representing a majority of the residents of a Baton Rouge subdivision, appeal the trial court's denial of their petition for a preliminary injunction. They sued to enjoin the Board of Adjustment of the City-Parish of East Baton Rouge (Board) from continuing to issue permits allowing the placement of trailers, or mobile homes, on lots in plaintiffs' subdivision, on the grounds that pre-existing subdivision building restrictions prohibit such placement. ¹

The broad issue is whether the trial court abused its discretion in denying plaintiffs' request for a preliminary injunction.

We affirm.

In his Reasons for Judgment, the trial judge referred to a section of the Code of Ordinances for the City of Baton Rouge and the Parish of East Baton Rouge in making conclusions regarding the Board's authority and responsibility when issuing permits as alleged. In brief on appeal, the Board also cites the ordinance in support of its arguments.

We are unable to consider the ordinance on review as it was never introduced into evidence, nor was any proof made that it has been filed with the Clerk of Court. We cannot take judicial cognizance of the ordinance cited. LSA-R.S. 13:3712(B); Patin v. Industrial Enterprises, Inc., 421 So.2d 362 (La.App. 1st Cir.1982), writ denied 423 So.2d 1166 (1982); Hudson v. City of Baton Rouge, 372 So.2d 1240 (La.App. 1st Cir.1979). However, we do not find reference to the ordinance necessary to resolution of this case.

It is undisputed that pre-existing restrictions affecting the subdivision in question prohibit the use of trailers as residences on subdivision property, for which purpose the Board, on occasion, allegedly grants permits to individual landowners. Plaintiffs seek to enjoin the Board from issuing any such permits in the future.

Landowners whose property benefits from valid building restrictions are entitled to enjoy those rights without interference from others, and may bring injunctive proceedings for their protection and enforcement against any violator or attempted violator. Salerno v. De Lucca, 211 La. 659, 30 So.2d 678 (1947); Camelot Citizens Association v. Stevens, 329 So.2d 847 (La.App. 1st Cir.1976), writ denied 333 So.2d 242 (La.1976); A.N. Yiannopoulos, Civil Law Predial Servitudes, Sec. 194. Plaintiffs argue that injunctive relief is proper under these circumstances because the Board, in granting permits as alleged, 'violates' the subdivision restrictions.

This argument is without merit. It is well established that municipal zoning ordinances neither terminate nor supersede pre-existing building restrictions. Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942); Cabibi v. Jones, 391 So.2d 461 (La.App. 4th Cir.1980); Hargroder v. City of Eunice, 341 So.2d 463 (La.App. 3rd Cir.1977), writ denied 344 So.2d 378 (La.1977); 101(A) C.J.S., Zoning and Planning, Sec. 114. While the Board may possess the legal authority to waive City-Parish zoning requirements, it clearly lacks the power to waive valid, pre-existing building restrictions. Thus, the actions of the Board complained of do not constitute violations of restrictions entitling plaintiffs to injunctive relief. The trial court correctly noted in his reasons for judgment that plaintiffs' remedy ² lies not against the Board but against those individuals who, whether they have received permits waiving zoning restraints from the Board or not, in fact attempt to violate subdivision restrictions by using trailers as residences on subdivision proper...