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Vieux Carre Property Owners v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

April 15, 2015

VIEUX CARRE PROPERTY OWNERS, ET AL.
v.
CITY OF NEW ORLEANS, BOARD OF ZONING ADJUSTMENTS

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-00286, DIVISION "C" Honorable Sidney H. Cates, Judge

Stuart H. Smith SMITH STAG, L.L.C., Barry J. Cooper, Jr. COOPER LAW FIRM, L.L.C., Michael L. Martin COUNSEL FOR PLAINTIFFS/APPELLANTS

Christy C Harowski, Chief Deputy City Attorney Sharonda R. Williams, City Attorney City of New Orleans, Justin B. Schmidt ADAMS AND REESE, LLP, Gino J. Rendeiro KAVANAGH & RENDEIRO COUNSEL FOR DEFENDANTS/APPELLEES

Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins

SANDRA CABRINA JENKINS JUDGE

This is a zoning dispute over a live entertainment permit issued to Antoine's Restaurant, L.L.C. ("Antoine's") by the Department of Safety and Permits (the "Department"). 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. Although it is undisputed that Antoine's is situated within a zoning district in which live entertainment is not a permitted use under the current Comprehensive Zoning Ordinance ("CZO"), [1] 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 ("BZA") seeking to overturn the determination that Antoine's sufficiently established the existence of a legal nonconforming use in accordance with the requirements of the CZO. The BZA denied Plaintiffs' appeal and upheld the decision of the Department. Plaintiffs then sought judicial review of the BZA decision in the district court, which found that the BZA's decision was not arbitrary, capricious, or manifestly erroneous and affirmed the BZA's decision. Plaintiffs' timely appeal to this Court followed.[2]

Upon our review of the record in light of the applicable law and standard of review, we affirm the district court's judgment and uphold the BZA's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Antoine's is the oldest continuously operating restaurant in New Orleans. Antoine's opened its original restaurant in 1840, moved to its current location at 713 St. Louis Street in 1868, and continued to expand its business through the acquisition of several adjoining lots of record (719, 723, and 725 St. Louis Street, and 513 and 519 Royal Street).[3] Since 1940, Antoine's has operated its restaurant out of a complex of buildings and several distinct dining areas that are all connected to one another through an intricate set of passageways. Similar to other businesses in the French Quarter that operate out of adjoining buildings upon several lots of record, Antoine's operates as a single business entity under one occupational license issued for the entirety of its complex.[4]

In 2008, Antoine's began renovating one of its distinct dining areas, the Hermes Room, to re-designate it the Hermes Bar. Antoine's applied for and received building permits for the renovations from the Department, [5] and, in December, 2010, Antoine's received the Certificate of Occupancy and Completion for the "renovation (non-structural)" at 713 St. Louis Street. The conversion into the Hermes Bar included the installation of a full bar and an exterior entrance on St. Louis Street, next to the main entrance of Antoine's; it also maintains access to and from the restaurant complex by three interior passageways. Rather than the traditional Antoine's menu formerly served in the Hermes Room, the Hermes Bar offers a more casual Antoine's fare, cocktails, and live entertainment.

On April 11, 2011, Antoine's received a letter from the Dept. of Safety & Permits stating that live entertainment was not a permitted use at "713 St. Louis Street (Hermes Bar)" because the property is zoned VCC-2, Vieux Carre Commercial, under the Comprehensive Zoning Ordinance (CZO). Upon receipt of the letter, Antoine's filed an application for a Mayoralty Permit to be issued to Antoine's for its live entertainment.[6] Along with the application, Antoine's submitted fourteen (14) affidavits from staff members and owners of Antoine's attesting to each person's knowledge that Antoine's has offered live entertainment as part of its operation on a continuous, uninterrupted basis, since as far back as 1955. The application and affidavits were submitted to the Department and reviewed by the Director, Paul May, who approved the issuance of the Mayoralty Permit for live entertainment to Antoine's on April 15, 2011.[7]

In granting the application for the live entertainment permit, the Director noted that the application was "approved pursuant to affidavits of non-conforming use" and such nonconforming status would be "re-examined if contrary documentation is submitted to the City."

On May 31, 2011, Plaintiffs filed an appeal of the Director's decision with the BZA seeking the rescission of the live entertainment permit to Antoine's. In their appeal, Plaintiffs argued that the live entertainment permit issued "at a cocktail lounge at one property (713 St. Louis)" was being used "in an attempt to legitimize an illegal use at another parcel (725 St. Louis);" that Antoine's failed to establish a nonconforming use because the submitted affidavits failed to establish the "4-hour, 5-day use required by the CZO;" and ...


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