Posted by: Patricia Salkin | May 16, 2015

LA Appeals Court Holds Restaurant that Offered Live Entertainment as a Regular and Continuous Part of Operation for 15 Years Prior to Restriction Established Nonconforming Use

This case arose out of a zoning dispute over a live entertainment permit issued to Antoine’s Restaurant, L.L.C. by the Department of Safety and Permits. Antoine’s submitted an application for a live entertainment permit to the Department along with fourteen affidavits attesting to the nonconforming use of live entertainment at Antoine’s. The Director of the Department approved the permit for live entertainment based on a determination that Antoine’s had established by sufficient evidence the existence of a legal nonconforming use. The Vieux Carre Property Owners, Residents & Associates, Inc., French Quarter Citizens, Inc., and Carol Allen (collectively the “Plaintiffs”), filed an appeal with the Board of Zoning Adjustments seeking to overturn the determination that Antoine’s sufficiently established the existence of a legal nonconforming use. The BZA denied Plaintiffs’ appeal and upheld the decision of the Department, and the Plaintiffs sought judicial review of the BZA decision in the district court, which affirmed the BZA’s decision. Plaintiffs then appealed.

Here, Antoine’s sought a permit for the existence of its nonconforming use of live entertainment and submitted fourteen affidavits from employees and members of the family owning Antoine’s. Each affidavit indicated the length of time the affiant has worked at and been “familiar with all facets of the operations of Antoine’s,” dating back to 1955; and each affiant attested that Antoine’s “has had live entertainment with no interruptions in excess of six months as part of the Antoine’s experience” during the entire period of the affiant’s tenure at Antoine’s. Both the Director and the BZA provided Plaintiffs the opportunity to submit evidence contrary to the affidavits submitted by Antoine’s, but the Plaintiffs failed to do so. Accordingly, the court found that the BZA did not act arbitrary, capricious or unreasonably in making its decision to uphold the existence of a nonconforming use at Antoine’s.

Vieux Carre Property Owners v City of New Orleans, 2015 WL 1736870 (LA App. 4/15/2015)


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