JAMES G. DERBES
THE CITY OF NEW ORLEANS
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-02921,
DIVISION "L" Honorable Kern A. Reese, Judge.
G. Derbes In Proper person COUNSEL FOR PLAINTIFF/APPELLANT
Lindsay DEPUTY CITY ATTORNEY Tanya L. Irvin ASSISTANT CITY
ATTORNEY Donesia D. Turner SR. CHIEF DEPUTY CITY ATTORNEY
Churita H. Hansell CHIEF DEPUTY CITY ATTORNEY Sunni J.
LeBeouf CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE
B. Schmidt BREAZEALE, SACHSE & WILSON, L.L.P. COUNSEL FOR
INTERVENORS-APPELLEES, ROSE DRILL PETERSON and FRANK PETERSON
composed of Judge Edwin A. Lombard, Judge Sandra Cabrina
Jenkins, Judge Tiffany G. Chase.
A. Lombard Judge.
appeal is from the district court judgment granting an
exception of improper cumulation filed by the defendant, the
City of New Orleans by and through its Board of Zoning
Adjustments ("BZA") in response to the petition
filed in district court by the plaintiff/appellant, James G.
Derbes, for judicial review of two separate BZA
determinations, BZA docket No. 014-17 and BZA docket No.
101-17, on December 19, 2018. After review of the record in
light of the applicable law and arguments of the parties, the
judgment of the district court is affirmed.
Facts and Procedural History
James G. Derbes, is the owner of a reception facility located
at 2257 Bayou Road, a/k/a Benachi House and Gardens, in a
HU-RDI zoning district. Although the property is located
within a zoning district that does not allow reception
facilities, it has been determined that the Benachi House has
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 v. City of New
Orleans, 2005-1249 (La.App. 4 Cir. 8/30/06), 941 So.2d
his decision to build a bandstand at the edge of his
property, Mr. Derbes 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 permit application was initially granted on
November 29, 2016, by a Zoning Administrator within the
Department (on behalf of the Director of Safety and Permits,
Dr. Jared Munster) based on his interpretation of the
pertinent zoning regulation that the existing shed on the
property could be used as the setback for the new structure.
The adjoining property owners, Rose and Frank Peterson,
objected to Mr. Derbes' plan and filed an appeal with the
zoning board, BZA docket No. 014-17). The BZA granted the
Petersons' appeal on February 19, 2018, overturning the
decision of its Director of Safety and Permits.
Mr. 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. The permit was denied by Department of
Permits and Safety based on its conclusion that, although the
property enjoys the status of a legal non-conforming use
allowing Mr. Derbes to conduct an events facility business in
a zoning district where such businesses are prohibited by the
city zoning ordinances, the proposed pavilion constituted a
prohibited expansion of the non-conforming use status,
thereby requiring a zoning change. On December 20, 2016, Mr.
Derbes appealed this decision to the zoning board, BZA docket
No. 101-17. The BZA denied Mr. Derbes' appeal on February
19, 2018, upholding the decision of the Director of Safety
and Permits to deny the permit.
March 26, 2018, Mr. Derbes filed a single petition in Civil
District Court seeking joint judicial review of the two
separate administrative decisions. At a status conference in
May 2018, the district court indicated that appeals of the
BZA decisions should be filed separately. Mr. Derbes took no
action and on June 11, 2018, the City (through its BZA) filed
an Exception of Improper Cumulation pointing out that Mr.
Derbes improperly sought to appeal two separate
administrative decisions in the district court although the
matters were not consolidated at the underlying
administrative hearings. In support of its exception, the
City filed a supplemental memorandum with an email between
the City Planner and Mr. Derbes which established that Mr.
Derbes was aware the two matters would not be consolidated
before the BZA because they were separate appeals concerning
two separate BZA determinations.
hearing on December 7, 2018, the district court granted the
Exception of Improper Cumulation and ordered Mr. Derbes to
amend his petition to delete one of the BZA appeals in the
instant case and to re-file the deleted BZA appeal as a
separate case in accordance ...