Posted by: Patricia Salkin | December 10, 2015

LA Appeals Court Upholds Denial of Restoration Permit for Nonconforming Use

Gebre, the owner of the property at issue In this case, leased his property to Fair Zone Food Store, which operated a grocery store as a legal nonconforming use. A couple months after the landfall of Hurricane Issac, the City ordered the building demolished after determining that it was in imminent danger of collapse. Even though the six-month period when the property was vacant would have normally extinguished the nonconforming use, based on his contention that the building on his property was destroyed by Hurricane Isaac, rather than his ongoing neglect, Gebre applied for a restoration permit pursuant to CZO § 13.3. In this case, Appellants, Amare E. Gebre and Fair Zone Food Store, L.L.C., appealed the district court’s judgment in favor of defendants, City of New Orleans and the City’s Board of Zoning Adjustments, affirming the BZA’s finding that the August 21, 2013 restoration permit was issued to Gebre in error and that Gebre is not entitled to a restoration permit. Specifically, the BZA had found that the damage to the building which required its demolition was caused by years of post-Katrina neglect, rather than Hurricane Isaac, and thus the building lost its permitted nonconforming use status under the terms of the City of New Orleans Comprehensive Zoning Ordinance (“CZO”).

Appellants first argued that in appealing the grant of the permit to the BZA the Fairgrounds Triangle Neighborhood Association (“FTNA”), which objected to the gran of the permit, was not an “aggrieved party” and thus lacked standing. However, the court found that the FTNA was not subject to the jurisprudential requirements for standing since the FTNA did not bring suit for injunctive relief in the district court, but rather sought judicial review of an administrative decision under a statute which specifically conferred that right of action. Additionally, under the totality of the circumstances surrounding the application the court upheld the determination that FTNA was entitled to proceed in forma pauperis.

The court next held that the property owner and lessor could not rely on the Louisiana anti-Strategic Suits Against Public Policy (anti-SLAPP) statute to strike specific allegations within homeowners association’s intervention petition. The reason for this was that these isolated allegations, which did not constitute a cause of action and had no relation to Gebre’s exercise of free speech, and were therefore not properly the subject of a Special Motion to Strike under La. C.C.P. 971. In its final assignment of error, Appellants sought review of the factual findings of the district court, arguing that the district court erred in determining that “the building in question was damaged before Isaac, and remained unrepaired.” The court looked to the substantial evidence in the record that: the building was damaged during Hurricane Katrina; no permits were pulled for post-Katrina repairs; two automobile accidents involving collisions into the building did further damage to the building; and no other buildings in the neighborhood sustained any damage as a result of Hurricane Isaac. The court therefore found that Appellants failed to meet their burden of showing that the BZA decision was arbitrary or capricious, and affirmed the holding of the district court.

Gebre v. City of New Orleans, 2015 WL 5854035 (La. App. 4th Cir. Oct. 7, 2015)

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