Preview:

EAST NEW ORLEANS NEIGHBORHOOD ADVISORY COMMISSION VERSUS LEVY GARDENS PARTNERS 2008, LLC, LEVY GARDENS PARTNERS, L.L.C., LEVY GARDENS PARTNERS 2007, L.P., CARUBBA ENGINEERING, INC., WASHER HILL LIPSCOMB CABANISS ARCHITECTURE (LA) LLC, RECON ENGINEERING, INC., DEVERE CONSTRUCTION COMPANY, INC. OF MICHIGAN, DELTA INTERNATIONAL CONSTRUCTION CORPORATION AND THE CITY OF NEW ORLEANS

* *

NO. 2009-CA-0326

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-802, DIVISION "L-6" Honorable Kern A. Reese, Judge ****** Judge Edwin A. Lombard ****** (Court composed of Judge David S. Gorbaty, Judge Edwin A. Lombard, Judge Roland L. Belsome) Iran A. Thompson II Lloyd N. Frischhertz, Jr. Marc L. Frischhertz FRISCHHERTZ & ASSOCIATES, L.L.C. 1130 St. Charles Avenue New Orleans, LA 70130 -ANDSteven J. Lane HERMAN HERMAN KATZ & COTLAR, L.L.P. 820 O'Keefe Avenue New Orleans, LA 70113 COUNSEL FOR PLAINTIFF/APPELLEE
1

Penya Moses-Fields City Attorney Evelyn F. Pugh Chief Deputy City Attorney Edward R. Washington III Deputy City Attorney Bobbie F. Mason Assistant City Attorney 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE THE CITY OF NEW ORLEANS Henry L. Klein 844 Baronne Street New Orleans, LA 70113-1103 -ANDSalvador Anzelmo Thomas W. Milliner Brian J. Burke ANZELMO MILLINER & BURKE, LLC 3636 South I-10 Service Road West Suite 206 Metairie, LA 70001

COUNSEL FOR DEFENDANTS/APPELLANTS LEVY GARDENS PARTNERS 2007, L.P. AND LEVY GARDENS PARTNERS, L.L.C.

AFFIRMED

2

This appeal is from a preliminary injunction enjoining construction on property in the East New Orleans Renaissance Corridor owned by defendants Levy Gardens Partners 2008, LLC, Levy Gardens Partners, LLC, and Levy Gardens Partner, LP1, until completion of the conditional use permit process and consent by the New Orleans City Council. After review of the record in light of the applicable law and arguments of the parties, we find no error in the judgment of the trial court. Relevant Facts and Procedural History The plaintiff/appellee, Eastern New Orleans Neighborhood Advisory Commission ("ENONAC"), is an advisory commission created by the state legislature in July 2008 to represent the interests of the individual homeowners in New Orleans East in preserving the property values of residential neighborhoods and the character and integrity of their community. The appellants are developers planning to construct a multi-family housing project consisting of twelve apartment buildings on property located in the vicinity of Bullard Avenue between Interstate 10 and Lake Forest Boulevard. A portion of the proposed construction

site requires a conditional use permit for construction of a multi-family residence. Specifically, the property at issue (Lot L) originally was divided into two lots, Lot 3A-6-1A-2C ("Lot 2C") and 3A-6-1A-1 ("Lot 1"), zoned, respectively, RO for General Office and B-2 for General Business District development. Whereas property classified as RO is zoned to allow multi-family housing as a permitted use, property classified as B-2 is zoned to allow multi-family housing only as a conditional use and, thus, requires an additional process to determine if a building permit will issue. In October 2007, an amendment to the 1995 City Zoning Ordinance ("CZO") required that multi-family housing in non-residential zoning districts within the area encompassed by the Eastern New Orleans Renaissance Corridor ("ENORC") required a "conditional use" permit. In December 2008, the ENORC, which initially included properties bordering Chef Menteur Highway in the vicinity of the intersection of Bullard Avenue and Interstate 10, was amended and, as a result, incorporated a portion of appellant developers' property. Thus, in December 2008, a portion of the appellant developers' proposed construction site became burdened with additional zoning regulations, including conditional use requirements. In November 2007, the appellant developers applied for four permits to begin construction of four of the twelve planned apartment buildings. Pursuant to the application, the appellant developers sought to build the four buildings at a single address,12200 Levy Drive. The permits were issued in February 2008 but the appellant developers did not begin construction. Accordingly, in July 2008 the

1

The appellant developers, although separate legal entities, appear to operate as a single entity for purposes of the matter at issue.

3

appellant developers requested a 180 day extension of the building permits. In August 2008, the extension request was granted and the appellant developers began work in October 2008. In September 2008, the appellant developers applied for permits for an additional eight buildings, again using the 12200 Levy Drive as the sole address. EONAC filed a petition for injunctive relief and, after reviewing relevant statutory zoning provisions, the trial judge concluded that the portion of the project to be built on the B-2 zoned area of the appellant developers' property must undergo the conditional use permit process. 2 Accordingly, on November 12, 2008, the trial court issued a stop-work order, along with a writ of mandamus directing the Safety and Permits Department to suspend all permits issued for this project until a determination was made as to which permits and permit applications corresponded to portions of the appellant developers' property wherein multi-family housing was zoned as a permitted use (RO) and which permits and permit applications corresponded to portions of the appellant developers property wherein multi-family housing was zoned as a conditional use subject to the conditional use process. The City filed a Satisfaction of Judgment, supported in part by the affidavit of the Director of the Department of Safety and Permits stating that all of the permits applied for by the appellant developers pertained only to the portion of the appellant developers' property zoned RO which allowed multi-family housing as a permitted use. Accordingly, on November 24, 2008, the trial court lifted the injunction and the Department of Safety and Permits re-issued the four initial
2

Per Article 16

Download 234194.pdf

Louisiana Law