APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 761-783, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/APPELLANT, CITY OF HARAHAN Gilbert R.
COUNSEL FOR PLAINTIFF/APPELLEE, WOOD MATERIALS LLC, WOOD
RESOURCES LLC L. Etienne Balart, Michael C. Drew, Remy J.
Donnelly, Lauren C. Mastio
composed of Judges Susan M. Chehardy, Robert A. Chaisson, and
John J. Molaison, Jr.
M. CHEHARDY CHIEF JUDGE
the City of Harahan (the "City"), seeks review of
the trial court's May 4, 2018 judgment maintaining the
exception of prescription in favor of defendants-appellees,
Wood Materials, L.L.C. and Wood Resources, L.L.C. (the
"Wood Companies"), and dismissing the City's
reconventional demand seeking to enforce an alleged "use
violation" against the Wood Companies with prejudice.
For the following reasons, we affirm the trial court's
BACKGROUND AND PROCEDURAL HISTORY
litigation involves the commercial composting activities of
the Wood Companies, who operate a composting facility located
in the Non-Urban Batture District (the "Batture"),
which is situated within the City's corporate
limits. The facts in this matter are not in
dispute. Since the 1960's, the Wood Companies have been
involved in various activities at their industrial materials
facility located on the Batture of the Mississippi River.
Specifically, between the hours of 6:00 p.m. to 6:00 a.m.,
the Wood Companies perform dredging, excavating and selling
of sand, mooring, and towing out of its facility within the
Batture. In particular, the Wood Companies have been engaged
in composting activities on their property since 2010.
December 19, 2011, the East Jefferson Levee District issued a
construction permit to the Wood Companies for the
construction of an "organic soil composting site"
within the Batture. The operating permit, also issued on
December 19, 2011 for the calendar year 2012, contained a
"[d]escription of [p]ermitted [a]ctivity" that
included "[c]onstruction and operation of sandpits and
limestone stockpiles & organic soil composting." The
operating permits subsequently issued to the Wood Companies
for the calendar years 2013 through 2016 also describe
composting activity as a permitted activity.
August 2012, the Wood Companies were hired by the City to
store, grind, and dispose of trees and other organic debris
left behind in the City following Hurricane Isaac. In order
to fulfill its obligations under the contract, the Wood
Companies collected and composted the hurricane debris at its
facilities located within the Batture. In October 2012, the
City paid the Wood Companies $23, 413.00 for the composting
work they performed pursuant to the contract.
9, 2016, the Wood Companies filed a declaratory judgment
action against the City with regard to the validity of
Proposed Ordinance No. 2016-3. The Proposed Ordinance would,
among other things, amend section XV of the City Zoning
Ordinance ("CZO") to remove "barge mooring and
holding facilities" from the permitted uses for the
Batture and impose an hours-of-operation restriction.
Specifically, the Wood Companies sought a declaration that
its composting operations within the Batture constituted a
nonconforming use in accordance with La. R.S. 9:5625, and
that any attempt to hold the Wood Companies in violation of
the CZO is prescribed by La. R.S. 9:5625(C) and the
grandfather provision found in La. R.S. 9:5625(B).
City responded by filing a reconventional demand, which
sought a declaration that the Wood Companies' operation
of a composting facility within the Batture is prohibited by
the CZO, and which sought injunctive relief enjoining the
Wood Companies from continuing to operate the composting
facility. In response to the City's reconventional
demand, the Wood Companies raised the exception of
prescription. Specifically, the Wood Companies argued that,
based upon the City's concession that it had written
notice of the Wood Companies' composting activities, that
are now alleged to be violations of zoning and use
regulations, no later than February 15, 2012, more than three
years prior to filing suit on July 21, 2016, the City's
right to enforce any alleged violation of the CZO regarding
their composting operations had prescribed pursuant to La.
R.S. 9:5625(C), which establishes a three-year prescriptive
period for public instrumentalities within Jefferson Parish,
including the City of Harahan.
opposition, the City argued that La. R.S. 9:5625(A)(3)-not
La. R.S. 9:5625(C)-was the applicable provision for actions
challenging zoning use regulation violations. Pursuant to La.
R.S. 9:5625(A)(3), all municipalities (except the Parish of
Orleans, the City of New Orleans and East Baton Rouge Parish)
have five years from the date on which the municipality was
first actually notified in writing of such violation in which
to bring an action. Consequently, the City averred that its
action against the Wood Companies had not prescribed.
Wood Companies' exception came for hearing on April 25,
2018. At the close of the hearing, the trial court took the
matter under advisement. Thereafter, on May 4, 2018, the
trial court issued judgment, with written reasons,
maintaining the Wood Companies' exception and dismissing
the City's reconventional demand against the Wood
Companies with prejudice. The trial court determined that the
City had actual notice in writing of the Wood Companies'
alleged violation no later than October 2012, and, thus,
under La. R.S. 9:5625(C), the City's suit brought more
than three years later was prescribed.
from this judgment that the City timely filed the instant
appeal, the City avers that the trial court erred: (1) in its
interpretation of La. R.S. 9:5625 in concluding that the
enforcement provisions set forth in La. R.S. 9:5625(C) apply
to the City of Harahan; and (2) in failing to find that the
five-year prescriptive period found in La. R.S. 9:5625(A)(3)
controls this action, which period commenced from the date
upon which the City's zoning authority received actual
notice in writing of the Wood Companies' violation of the
CZO's use regulation.
of Review and Statutory Construction
issues in this case turn on the proper interpretation of La.
R.S. 9:5625. When the matter before the Court involves the
interpretation of a statute, it is a question of law, and a
de novo standard of review is applied. Red Stick
Studio Dev., L.L.C. v. State ex rel. Dep't. of Econ.
Dev., 10-0193 (La. 1/19/11), 56 So.3d 181, 187. Thus, we
review the trial court's judgment under a de
novo standard of review, without deference to the legal
conclusions of the trial court below. Id.;
Benjamin v. Zeichner, 12-1763 (La. 4/5/13), 113
So.3d 197, 201.
Benjamin, the Louisiana Supreme Court stated that
"the function of statutory interpretation and the
construction given to legislative acts rests with the
judicial branch of the government." Id. The
Court further explained the following regarding statutory
The rules of statutory construction are designed to ascertain
and enforce the intent of the Legislature. Legislation is the
solemn expression of legislative will and, thus, the
interpretation of legislation is primarily the search for the
legislative intent. We have often noted the paramount
consideration in statutory interpretation is ascertainment of
the legislative intent and the reason or reasons which
prompted the Legislature to enact the law. The starting point
in the interpretation of any statute is the language of the
statute itself. When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law
shall be applied as written and no further interpretation may
be made in search of the intent of the [L]egislature.
However, when the language of the law is susceptible of
different meanings, it must be interpreted as having the
meaning that best conforms to the purpose of the law.
Moreover, when the words of a law are ambiguous, their
meaning must be sought by examining the context in which they
occur and the text of the law as a whole. Further, the
legislature is presumed to act with full knowledge of
well-settled principles of statutory construction. [Citations
Id. at 202. The object of the court in construing a
statute is to ascertain the legislative intent and, where a
literal interpretation would produce absurd consequences, the
letter must give way to the spirit of the law and the statute
construed so as to produce a reasonable result. Richard
v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131, 149;
SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695
(La. 6/29/01), 808 So.2d 294, 302. A statute must be applied
and interpreted in a manner that is logical and consistent
with the presumed purpose and intent of the Legislature.
Succession of Boyter, 99-0761 (La. 1/7/00), 756
So.2d 1122, 1129.
is designed to foster improvements by confining certain
classes of buildings and uses to certain localities without
imposing undue hardship on property owners. City of New
Orleans v. Elms, 566 So.2d 626, 628 (La. 1990).
"The essence of zoning is territorial division in
keeping with the character of the lands and structures and
their peculiar suitability for particular uses, and the
uniformity of use within the division. The traditional
purpose of zoning is to reduce or eliminate the adverse
effects of one type of land use on another by segregating
different uses into different zoning districts."
jurisprudence clearly states that zoning by its nature is a
legislative function, the authority for which flows from the
police power of governmental bodies. King v. Caddo Parish
Com'n, 97-1873 (La. 10/20/98), 719 So.2d 410, 418.
La Const. art. VI, § 17 expressly grants the power to
enact zoning regulations to all local governments. St.
Charles Gaming Co., Inc. v. Riverboat Gaming, 94-2697
(La. 1/17/95), 648 So.2d 1310, 1316. La. R.S. 33:4721
provides, in part, that "[f]or the purpose of promoting
health, safety, morals, or the general welfare of the
community, the governing authority of all municipalities may
regulate and restrict the height, number of stories, and size
of structures, the percentage of lot that may be occupied,
the size of yards, courts, and other open spaces, the density
of population, and the location and use of the buildings,
structures, and land for trade, industry, residence, or other
purposes." Additionally, La. R.S. 33:4723 indicates that
zoning regulations shall, among other things, "be made
with reasonable consideration of the character of the
district and its peculiar suitability for particular uses,
and with a view to conserving the values of buildings and
encouraging the most appropriate use of land throughout the
these legal precepts in mind, we examine the language of the
statute, La. R.S. 9:5625, which provides:
5625. Violation of zoning restriction, building
restriction, or subdivision regulation
A. (1) All actions civil or criminal, created by statute,
ordinance, or otherwise, except those actions created for the
purpose of amortization of nonconforming signs and billboards
enacted in conformity with the provisions of R.S. 33:4722,
which may be brought by parishes, municipalities, or their
instrumentalities or by any person, firm, or corporation to
require enforcement of and compliance with any zoning
restriction, building restriction, or subdivision regulation,
imposed by any parish, municipality, or an instrumentality
thereof, and based upon the violation by any person, firm, or
corporation of such restriction or regulation, must be
brought within five years from the first act constituting the
commission of the violation.
(2) Where a violation has existed for a period of two years
prior to August 1, 1956, except those actions created for the
purpose of amortization of nonconforming signs and billboards
enacted in conformity with the provisions of R.S. 33:4722,
the action must be brought within one year from and after
August 1, 1956.
(3) With reference to violations of use regulations all such
actions, civil or criminal, except those actions created for
the purpose of amortization of nonconforming signs and
billboards in conformity with the provisions of R.S. 33:4722,
must be brought within five years from the date the parish,
municipality, and the properly authorized instrumentality or
agency thereof if such agency has been designated, first had
been actually notified in writing of such violation.
(4) Except as relates to nonconforming signs and billboards,
any prescription heretofore accrued by the passage of two
years shall not be interrupted, disturbed, or lost by