Lamana-Panno-Fallo, Inc. v. Heebe

• Decision Date: 29 November 1977
• Docket Number: No. 9036,INC,LAMANA-PANNO-FALL,9036
• Citation: 352 So.2d 1303
• Parties: v. Bernhardt C. HEEBE, Executor of the Succession of Marie Webre, widow of Edwin B. Norris.
• Court: Court of Appeal of Louisiana — District of US

Page 1303

352 So.2d 1303

LAMANA-PANNO-FALLO, INC. v. Bernhardt C. HEEBE, Executor of the Succession of Marie

Webre, widow of Edwin B. Norris.

No. 9036.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 29, 1977.

Reuter & Reuter, Arthur C. Reuter, New Orleans, for Lamana-Panno-Fallo, Inc., plaintiff-appellant.

Odom B. Heebe, Curtis, Foster, Hyde & Mooney, Gordon B. Hyde, New Orleans, for defendant-appellee.

Before REDMANN, LEMMON and BOUTALL, JJ.

BOUTALL, Judge.

This is a declaratory judgment suit by plaintiff Lamana-Panno-Fallo, Inc. against its lessor seeking to obtain a judicial determination of the validity and enforceability of certain usage restrictions in lessor's chain of title. The trial court declared the restrictions invalid and unenforceable, and defendant appeals.

Plaintiff and defendant, Bernhardt C. Heebe, as Executor of the Succession of Marie Webre, widow of Edwin B. Norris, entered into a commercial lease of 9 lots of ground, being lots 1A, 2A, 3A, 4A-A, 4B-A, 5A-A, 5B-A, 6A-A and 6B-A, of Sq. 50, Bonnabel Place Subdivison, fronting on Veterans Memorial Highway (formerly Canal Street) and measuring 312 feet from the corner of Bonnabel Blvd. to the corner of Orion Ave. The lease is for commercial purposes in order to permit the plaintiff to construct and operate a funeral home or mortuary on the premises, a permitted use of its C-2 Commercial classification under the Comprehensive Zoning Ordinance for the Parish of Jefferson, Ordinance # 3813, as amended. The problem arising in this case is that the lots have been burdened with the following restrictive covenant which would prohibit is commercial use imposed under the Zoning Laws:

"The property shall always be used for residence purposes only, and no commercial business shall be conducted or operated upon the premises."

Thus, if the restrictions in lessor's title prevail, the commercial use forming the basis of the lease will be prohibited, yet at the same time, if the zoning law is to be enforced, only incidental residential use may be achieved. Thus the cumulative effect of the prohibited uses under the law and the title restrictions is to effectively deprive the owner and the lessee of nearly all use of the property. Since commercial use of the property is the basis of the lease between the parties, a justiciable controversy is presented to the court for consideration under the declaratory judgment law.

The trial court has resolved this controversy by declaring that based on the facts in this case, the title restrictions prohibiting commercial or business uses are no longer valid or enforceable as regards this property and that commercial construction and use thereon is no longer prohibited. We agree.

The restrictive covenants in the title did not come into being as one overall or general plan of restrictions imposed upon the entire subdivision, but instead, restrictive stipulations were inserted in the initial title deeds from the owner and developer, Bonnabel Land Company, Inc., to purchasers of lots in Bonnabel Place. At the time that the subdivision was created, some 60 years ago, Bonnabel Place was a long narrow tract extending through undeveloped land and was bi-sected in the approximate middle by a wide drainage canal with a street running alongside named Canal Street. As the entire area developed, the drainage canal and Canal Street became Veterans Memorial Highway, presently one of the three most heavily congested major East/West traffic arteries in Jefferson Parish, extending from the Orleans Parish line to the St. Charles Parish line. With the construction of this major thoroughfare, the nature of the land use in the area changed, and that portion of Bonnabel Place fronting on both sides of Veterans Memorial Highway is presently substantially and almost totally developed and built up as commercial properties and used for commercial purposes. The trial judge found the following facts:

"There are 72 lots in Squares 40 through 53, inclusive, each measuring 52 feet front on Veterans Memorial Highway. Portions of certain lots (in Squares 46 and 47) equivalent to approximately two lots are owned by the Parish of Jefferson, having been acquired for drainage canal and widening of the highway at the western boundary of the subdivision.

"The present composition and use of the 70 pertinent privately owned lots in Bonnabel Place are:

a) One (1) lot (Lot 19 of Square 43) is improved and used as a small single residence (it would appear that even this lot may be in violation of the residential restrictions prohibiting business uses as there is a "Plants for Sale" sign in the front yard).

b) Fifty-nine (59) of the lots are improved with commercial structures (or used) for a wide variety of business and commercial purposes all in obvious violation of the residential restrictions.

c) Four (4) other lots are unimproved, their use status is unknown, but they also appear to be in violation of the residential restrictions in that they appear to be used for off-street parking of vehicles of contiguous commercial properties; and

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