Jackson Court Condominiums v. City of New Orleans, Civ. A. No. 84-3466.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtSalvador Anzelmo, City Atty., New Orleans, La., for defendant
PartiesJACKSON COURT CONDOMINIUMS, INC. v. CITY OF NEW ORLEANS.
Decision Date20 July 1987
Docket NumberCiv. A. No. 84-3466.

665 F. Supp. 1235

JACKSON COURT CONDOMINIUMS, INC.
v.
CITY OF NEW ORLEANS.

Civ. A. No. 84-3466.

United States District Court. E.D. Louisiana.

July 20, 1987.


665 F. Supp. 1236

Warren A. Goldstein, New Orleans, La., for plaintiff.

Salvador Anzelmo, City Atty., New Orleans, La., for defendant.

ORDER AND REASONS

McNAMARA, District Judge.

Before the court is the Motion of Defendant, City of New Orleans ("City"), for Summary Judgment and/or to Dismiss. Plaintiff, Jackson Court Condominiums, Inc. ("Jackson Court"), opposes the Motion. The Motion, set for hearing on May 6, 1987, was taken under advisement on briefs without oral argument. In the instant suit, Jackson Court seeks damages and attorney's fees under 42 U.S.C. § 1983. This suit arises out of the City's enactment of a timesharing moratorium ordinance and the City's denial of Jackson Court's request for a waiver from the provisions of that ordinance.

As one district court judge aptly noted some twenty years ago, "The instant action is of a type increasingly more common, in which citizens feel themselves aggrieved

665 F. Supp. 1237
by some action of local government officials and come to the Federal Court under the Civil Rights Act believing, more emotionally than rationally, that they must be entitled to a remedy here." Love v. Navarro, 262 F.Supp. 520, 521 (C.D.Cal.1967). This is just such an action, and for the reasons set out below, the court finds, as a matter of law, that Jackson Court has failed to state a claim under 42 U.S.C. § 1983 and as such, the instant action must be dismissed

I.

A reading of the Complaint, the Amended Complaint and the parties' Statements of Uncontested Material facts discloses the following undisputed facts:

Jackson Court purchased a 21-unit apartment building located at 1207 Jackson Avenue in New Orleans on August 15, 1981 for $650,000.00 for the purpose of developing a timeshare condominium project. Prior to the adoption of Ordinance 8344 M.C.S. timesharing among co-owners of immovable property would have been permitted on Jackson Court's property which was located in an "RM-2" zoning district.

On October 22, 1981, the Council of the City of New Orleans ("The Council") adopted Ordinance 8344 M.C.S., establishing a temporary city-wide moratorium on timeshare plans in zoning districts designated, among others, RM-2. The Minutes of the City Council meeting of October 1, 1981, published in the Times-Picayune/States-Item of October 22, 1981, contained a statement of the introduction of a calendar item described by reciting its title. This calendar item was adopted as Ordinance 8344 M.C.S. later on October 22, 1981. No other notice of hearing for the proposed Ordinance was ever published.

Ordinance 8344 provided that upon notice to the Council, any person aggrieved by the Ordinance could seek a waiver or exception upon a showing that the petitioner would experience undue hardship and that the proposed project would not adversely affect the character of the surrounding neighborhood. Other timesharing moratorium ordinances applying to particular areas of the city, e.g., the French Quarter and the Faubourg Marigny, also had waiver provisions. On March 31, 1982, five months after adoption of Ordinance 8344, Jackson Court requested a hearing before the City Council for a waiver of the restrictions of Ordinance 8344 with respect to its project. On April 15, 1982, after a hearing before the City Council, Jackson Court's waiver request was denied. All previous requests for waivers under the various timeshare moratoria had been approved by the Council.

The facts surrounding the April 15, 1982 hearing are disputed. For purposes of this Motion, the court accepts as true Jackson Court's allegations concerning the April 15 hearing as follows:

(a) Except in rare instances not applicable herein, members of the New Orleans City Council have agreed to cast their vote on each zoning matter presented to the City Council for disposition according to and in conformity with the vote cast by that councilman representing the district in which the property that is the subject of the zoning matter presented is located.
(b) This agreement was entered into by elected members of the City Council at a date unknown to Jackson Court and had been in effect through and including the date upon which Jackson Court's application for a waiver from the provisions of the moratorium ordinance was denied by the City Council.
(c) The agreement is now known and referred to as the "Gentlemen's Agreement."
(d) At the April 15, 1982 hearing, the City Council voted in conformance with the "Gentlemen's Agreement" and denied Jackson Court's waiver request on the basis of Councilman Singleton's vote.

On April 14, 1982, the day before Jackson Court's hearing before the City Council, Jackson Court filed with the Custodian of Notarial Records for the Parish of Orleans, a Condominium Declaration relative

665 F. Supp. 1238
to the Jackson Avenue property which contained provisions for timesharing of individual units among co-owners. On that same day, Jackson Court filed its registration of the proposed condominium timeshare plan with the New Orleans Department of Safety and Permits. Jackson Court's registration was rejected by letter dated May 17, 1982, of Paul May, the City's Zoning Administrator

The events surrounding the various timeshare moratoria did not take place in a vacuum. Zoning Docket 42/81, initiated by City Council Motion on May 28, 1981, prior to Jackson Court's purchase of the Jackson Avenue property, proposed comprehensive amendments to the City's Comprehensive Zoning Law regarding timesharing, including a total ban on timesharing in the RM-1 and RM-2 zoning districts. A public hearing on Zoning Docket 42/81 was held before the City Planning Commission on August 5, 1981 pursuant to notices published in the Times-Picayune/States-Item on July 15, 22, and 29, 1981. And similarly, Zoning Docket 71/82, initiated by City Council Motion on September 24, 1981, like Zoning Docket 42/81, proposed comprehensive amendments to the City's Comprehensive Zoning Law regarding timesharing, including a total ban on timesharing in RM-1 and RM-2 zoning districts. A public hearing on Zoning Docket 71/82 was held before the City Planning Commission on November 4, 1981 pursuant to notices published in the Times-Picayune/States-Item on October 14, 21 and 28, 1981.1

Jackson Court, in its Statement of Uncontested Material Facts, adopted its Stipulation of Facts from the previous state court litigation.2 Stipulation number 21 provides in part as follows:

The results of the City Planning Commission study lead to the conclusion that the key characteristic of timeshare plans is that they are transient facilities, similar to hotels, and that thus they should not be permitted anywhere a city would not permit hotels or motels.... A characteristic of transients is that they do not have a sense of belonging to the neighborhood, and thus no neighborhood pride and commitment; such transient attitudes can produce effects such as loudness, carelessness, littering and vandalism.... The CPC study further indicated that the New Orleans housing market is in a state where available rental units are in high demand because of low supply and that recent conversions of apartment buildings to condominiums is partially responsible for the poor rental supply....

The end result of Zoning Docket 71/82 was Ordinance 8585 M.C.S. which effected a permanent total ban on timesharing in certain zoning districts (including RM-1 and RM-2 districts) and triggered the dissolution of the various timesharing moratoria including Ordinance 8344. Ordinance 8585 was adopted by the City Council on April 22, 1982 and became effective on April 23, 1982.

Thereafter, Jackson Court sought injunctive and declaratory relief in Louisiana state courts. The trial court rendered judgment against Jackson Court. The Louisiana Fourth Circuit Court of Appeal dismissed Jackson Court's appeal as moot because creditors had foreclosed on Jackson Court's property. Thus, the court could not grant the relief Jackson Court sought. The Court of Appeals did not review the trial court's judgment on the merits. The Louisiana Supreme Court denied writs and the instant suit followed shortly thereafter.

Early in this litigation, the City filed a Motion for Summary Judgment based primarily on the contention that the state court judgment precluded the instant suit under the doctrine of res judicata. Another section of this court granted the City's Motion based only on the res judicata issue. Jackson Court appealed this ruling to

665 F. Supp. 1239
the Fifth Circuit Court of Appeals which reversed the district court and held that the doctrine of res judicata did not bar the instant suit. After remand, the case was transferred to this section of the court. The City now reurges its alternative grounds for Summary Judgment or Dismissal

II.

Jackson Court asserts several claims under the Civil Rights Act, 42 U.S.C. § 1983. The gist of Plaintiff's claims is that the City, through the City Council, acting under color of state law, deprived Jackson Court of its rights, privileges or immunities secured by the United States Constitution and that this deprivation caused Jackson Court to suffer the loss of its Jackson Avenue property. Jackson Court alleges roughly nine supposed constitutional violations:

1. Ordinance 8344 violates the separation of powers provisions of the New Orleans Home Rule Charter and is therefore unconstitutional. (Complaint ¶ s 20-21).
2. Ordinance 8344 and Ordinance 8585 violate the state constitution and zoning enabling laws in that these ordinances regulate ownership instead of use of property. (Complaint ¶ 23).
3. Ordinance 8344 and Ordinance 8585 constitute confiscatory measures without just compensation in violation of the Fifth Amendment to the United States Constitution. (Complaint ¶ 24).
4. Ordinance 8344 violates the
...

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18 practice notes
  • Molamphy v. Town of Southern Pines, No. 1:02CV00720 (M.D.N.C. 3/3/2004), No. 1:02CV00720.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 3, 2004
    ...Id. at 897. Even a specific zoning decision can constitute a legislative act. Jackson Court Condominiums, Inc. v. City of New Orleans, 665 F. Supp. 1235, 1244 (E.D. La. 1987), aff'd, 874 F.2d 1070 (5th Cir. 1989), citing, Shelton v. City of College Station, 780 F.2d 475, 480 (5th Cir. 1986)......
  • Eller Media Co. v. Montgomery County, No. 00571
    • United States
    • Court of Special Appeals of Maryland
    • January 30, 2002
    ...damages for injuries allegedly suffered as a result of the repealed ordinance.); Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235, 1240 (E.D.La.1987), aff'd, 874 F.2d 1070 (5th Cir.1989) (plaintiff, who sought monetary damages for deprivation of its rights caused by the e......
  • Town of Sunnyvale v. Mayhew, No. 05-92-01401-CV
    • United States
    • Court of Appeals of Texas
    • May 10, 1994
    ...common intelligence must guess at its meaning and differ as to its application. See Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235, 1242 (E.D.La.1987), aff'd, 874 F.2d 1070 (5th Cir.1989). The fact that the Town must exercise discretion in granting variances for planned......
  • Adair v. Bell, Civil Action No. 3:93cv132-D-D (N.D. Miss. 1995), Civil Action No. 3:93cv132-D-D.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 1, 1995
    ...1986); Stern v. Tarrant County Hospital Dist., 778 F.2d 1052, 1056 (5th Cir. 1985); Jackson Court Condominiums, Inc. v. New Orleans, 665 F.Supp. 1235, 1241 (E.D. La. 1987). "The right to have state (or city) laws obeyed is a state, not a federal, right." Jackson Court, 665 F.Supp. at 1241 (......
  • Request a trial to view additional results
18 cases
  • Molamphy v. Town of Southern Pines, No. 1:02CV00720 (M.D.N.C. 3/3/2004), No. 1:02CV00720.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 3, 2004
    ...Id. at 897. Even a specific zoning decision can constitute a legislative act. Jackson Court Condominiums, Inc. v. City of New Orleans, 665 F. Supp. 1235, 1244 (E.D. La. 1987), aff'd, 874 F.2d 1070 (5th Cir. 1989), citing, Shelton v. City of College Station, 780 F.2d 475, 480 (5th Cir. 1986)......
  • Eller Media Co. v. Montgomery County, No. 00571
    • United States
    • Court of Special Appeals of Maryland
    • January 30, 2002
    ...damages for injuries allegedly suffered as a result of the repealed ordinance.); Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235, 1240 (E.D.La.1987), aff'd, 874 F.2d 1070 (5th Cir.1989) (plaintiff, who sought monetary damages for deprivation of its rights caused by the e......
  • Town of Sunnyvale v. Mayhew, No. 05-92-01401-CV
    • United States
    • Court of Appeals of Texas
    • May 10, 1994
    ...common intelligence must guess at its meaning and differ as to its application. See Jackson Court Condominiums v. City of New Orleans, 665 F.Supp. 1235, 1242 (E.D.La.1987), aff'd, 874 F.2d 1070 (5th Cir.1989). The fact that the Town must exercise discretion in granting variances for planned......
  • Adair v. Bell, Civil Action No. 3:93cv132-D-D (N.D. Miss. 1995), Civil Action No. 3:93cv132-D-D.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 1, 1995
    ...1986); Stern v. Tarrant County Hospital Dist., 778 F.2d 1052, 1056 (5th Cir. 1985); Jackson Court Condominiums, Inc. v. New Orleans, 665 F.Supp. 1235, 1241 (E.D. La. 1987). "The right to have state (or city) laws obeyed is a state, not a federal, right." Jackson Court, 665 F.Supp. at 1241 (......
  • Request a trial to view additional results

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