Posted by: Patricia Salkin | December 8, 2019

LA Appeals Court Upholds Grant of Exception of Improper Cumulation When Property Owner Attempted to Appeal Two Decisions in One Proceeding that Denied Applications for a Bandstand and Accessory Pavillion

This post was authored by Matthew Loeser, Esq.

Mr. James G. Derbes was the owner of a reception facility located in a HU-RDI zoning district. Although this property was located within a zoning district that did not allow reception facilities, it had been determined that it had a legal non-conforming use to operate as a reception facility because the property had continuously held commercial activities without the City bringing an action to stop the commercial use of the property. Derbes then decided to build a bandstand at the edge of his property, and therfore applied for a building permit with the City’s Department of Safety and Permits to build the bandstand in conjunction with an existing shed on the property. The adjoining property owners, Rose and Frank Peterson, objected to Derbes’ plan and filed an appeal with the zoning board. The BZA granted the Petersons’ appeal on February 19, 2018, overturning the decision of its Director of Safety and Permits. Derbes filed a permit application for construction of a 950 square foot “Accessory Pavilion” on his property to use in conjunction with events staged at his reception facility; however, the permit was denied by Department of Permits and Safety, and the BZA denied Mr. Derbes’ appeal – upholding the decision of the Director of Safety and Permits to deny the permit.

In this case, Derbes contended that although the BZA determinations were not consolidated before the BZA because the BZA considered the two actions separate, it was error for the district court to grant the exception of improper cumulation when he attempted to appeal the two decisions in one proceeding. Although both BZA decisions related to Derbes’ property and his attempt to build an additional structure on it for commercial purposes, the BZA decisions arose from different permit applications and procedural postures with separate BZA docket numbers and records. Moreover, the district court specifically ordered Derbes to proceed with the appeal of one BZA decision and file a separate action in Civil District Court to appeal the other BZA decision. As it was within the district court’s discretion as to whether to order separate trials of the actions or to order Derbes to proceed in separate actions, the district court’s decision was upheld.

Derbes v. City of New Orleans, 2019 WL 6542127 (LA App. 12/4/2019)


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