Posted by: Patricia Salkin | February 12, 2016

LA Appeals Court Holds Heliport Was Not a Permissible “Light Industrial Operation” Under Building Restrictions

Defendant/appellant, 310 Investments, LLC (“310”), owned property located in a business park developed by plaintiff/appellee, Esperanza Land, LLC. 310’s property was subject to Esperanza’s recorded building restrictions. Despite opposition from Esperanza and other adjacent property owners, the St. Charles Parish Council rezoned Lot 3 from M–1 to AV–1 and authorized the Special Permit Use to operate the land as a heliport. When 310 began making improvements on its property without Esperanza’s prior approval, Esperanza sought and was granted a preliminary injunction that restrained, enjoined, and prohibited 310 from making any further improvements to its property.

In its first assignment of error, 310 argued that Esperanza arbitrarily and capriciously rejected its building plans. Specifically, 310 argued that the restrictions give Esperanza the right to deny plans based on structural restrictions, but not based on use restrictions. However, this argument failed because Article VI(B) of the building restrictions explicitly stated that approval of plans shall be based on a number of criteria including, “the effect of location and use of improvements on neighboring sites” and “conformity of the plans and specification to the purpose and general plan and intent of these restrictions.” Thus, the restrictions stated that use of the improvements as well as the purpose of the restrictions would be considered as criteria for approving plans.

Next, 310 argued that the trial court erred in finding that its proposed “office warehouse” was not a permitted use under the building restrictions. 310 claimed that the trial court erred when in its reasons for judgment it sought to distinguish between a “warehouse” and a “hangar” based upon the use to which the structure are put. However, the court found no error in that distinction, since the trial court was interpreting restrictions on use. Finally, 310 argued that Esperanza’s use restrictions had been abandoned, citing the presence of a cell phone tower and billboard. The court found that both the cell phone tower and the billboard were erected prior to the establishment of the business park and building restrictions. Though there was no “grandfather clause” in the restrictions, considering the intention of Esperanza in imposing the restrictions, the court did not find that these structures served as a basis to claim the restrictions have been abandoned. 310 failed to show that any potential violations in use were substantial enough to prove an abandonment of the restrictions. Accordingly, the court affirmed the trial court’s judgment granting Esperanza’s preliminary injunction prohibiting any further construction of a heliport on 310’s property pending resolution of the permanent injunction.

Esperanza Land v 310 Investments, LLC, 179 So.3d 861 (LA App. 11/19/15)

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