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Wimsatt v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03771, DIVISION "J" Honorable D. Nicole Sheppard



          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano


         In this zoning case, defendant/appellant, City of New Orleans (the "City"), appeals the February 28, 2019 judgment of the district court, which denied several exceptions filed by the City and granted a preliminary injunction in favor of plaintiff/appellee, Suzanne Wimsatt ("Wimsatt"). The preliminary injunction prohibited the City from enforcing a May 9, 2018 administrative judgment from the Department of Safety and Permits, which imposed fines on Wimsatt for violating a city zoning ordinance relative to excessive paving in her front yard and ordered her to remove the excessive paving. For the reasons that follow, we reverse the denial of the City's exception of no cause of action; vacate the remainder of the judgment; and remand this matter to the district court.

         This litigation pertains to Wimsatt's short term rental property on Peniston Street in uptown New Orleans, where the front yard is 100% paved. The parties dispute how much of this concrete paving preexisted Wimsatt's purchase of the property and for what period of time.

         Wimsatt purchased the property via tax sale[1] and undertook construction to convert the property from a triplex to a duplex. Following construction, the City issued Wimsatt a certificate of occupancy and completion on December 1, 2016. A second certificate was issued on April 6, 2017. On that date, Wimsatt's property manager, Nidal Jaber ("Jaber"), applied for a short term rental permit and was advised by City staff that a neighbor had complained about the front yard paving, such that the property had been "flagged" for noncompliance with the City's Comprehensive Zoning Ordinance ("CZO"). In an effort to avoid delay on the permit's issuance, Jaber paid, on Wimsatt's behalf, a fine of $7, 920.00.[2] On May 24, 2017, the City issued Wimsatt a short term rental permit, which expired on April 19, 2018.

         On March 12, 2018, the City's Department of Safety and Permits issued Wimsatt a notice that the City had inspected her property and cited her for violating CZO, § 11.3.A.1, Table 13.2, which provides that the maximum impervious surface area of the front yard may not exceed 40%. The notice instructed Wimsatt to remedy the condition within 10 days and contact the City to schedule a re-inspection. On April 3, 2018, the Department of Safety and Permits issued Wimsatt a notice of administrative hearing regarding the CZO violation, setting the hearing on April 18, 2018.

         On April 17, 2018, Wimsatt filed a "Petition for Injunctive Relief" ("first petition") in the district court, seeking removal of the City's "flag" on her property such that she could renew her short term rental permit, and enjoining the Department of Safety and Permits from holding the hearing. Wimsatt alleged that her income depends on the permit to operate her short term rental property, and that the "flag" on her property prevents her from renewing the permit. She annexed to her first petition the affidavits of several neighbors attesting that "prior to the acquisition of the property by Ms. Wimsatt from the City of New Orleans the yard surrounding the home was concreted in the same manner that it is now."

         On April 20, 2018, the City filed an exception of prematurity on the basis that Wimsatt had not yet exhausted her administrative remedies, as there had not yet been any administrative hearing. The district court agreed and, on May 23, 2018, granted the City's exception and dismissed Wimsatt's first petition without prejudice.

         Meanwhile, on May 9, 2018, the administrative hearing went forward, at which an administrative judgment was rendered, finding Wimsatt in violation of CZO, § 11.3.A.1, Table 13.2 for having paved more than 40% of her front yard with an impervious surface. The judgment ordered Wimsatt to remove the excess paving within 30 days and assessed her with a fine of $500.00, a hearing cost of $75.00, plus, after the 30-day abatement period, an additional penalty of $100.00 per day, until the violation is corrected, for a period of up to one year.

         Wimsatt appealed the administrative decision to the Board of Zoning Adjustments ("BZA"), which held a hearing on August 13, 2018. While the record before this Court does not contain a complete record of the administrative or BZA proceedings, the City contends that Wimsatt's only argument to the BZA was that her property had attained "legal, non-conforming status" for pavement exceeding the CZO allowance.[3] On August 23, 2018, the BZA filed its "Disposition of Zoning Case," which denied Wimsatt's appeal.

         On September 13, 2018, Wimsatt filed a "Petition for Temporary Restraining Order" ("second petition"), contending that her request for injunctive relief against the City was no longer premature.[4] She alleged that the City determined that the property "had not achieved non-conforming status," that she "appealed via hardship appeal process" to the BZA, and that her "hardship appeal" was "unsuccessful." Wimsatt alleged that the fines assessed in the administrative judgment are "immediately due, unless enjoined by Court Action." She stated that she will suffer irreparable injury to her "economic survival" if her certificate of occupancy and completion is revoked, her property is removed from the short term rental program, and the administrative fines are upheld. Wimsatt claimed that she is entitled to injunctive relief ordering the City to remove the "flag" on the property, and enjoining the City from enforcing the May 9, 2018 administrative judgment or interfering with Wimsatt's renewals of short term rental permits or certificates of occupancy and completion. On September 17, 2018, the district court granted a temporary restraining order ("TRO") enjoining the City from enforcing the administrative judgment.

         On September 27, 2018, Wimsatt filed a "Supplemental Pleading in Support of Injunctive Relief" in which she stated that she had obtained the expert opinion of an engineer, who opined that removing the concrete was likely to damage the structure of the home. On September 28, 2018, the City filed a motion to dissolve the TRO. On October 2, 2018, the City filed exceptions of lack of subject matter jurisdiction, prescription, no cause of action, and res judicata.

         A hearing on the motion, exceptions, and preliminary injunction went forward on October 4, 2018, at which Wimsatt, her engineer expert witness, and the City's chief zoning official, as custodian of records for the Department of Safety and Permits, each testified. On February 28, 2019, the district court rendered judgment dissolving the TRO, denying the City's exceptions, and granting a preliminary injunction in favor of Wimsatt and against the City as follows:

…enjoining and prohibiting the City [] from enforcing its May 9, 2018 Administrative Judgment against [Wimsatt] … in the amount of $575.00 in addition to $36, 500.00 in daily fines as to [Wimsatt's] property … for a period of one hundred eighty (180) days from date of this Judgment, and during which time the parties are encouraged to attempt to resolve the competing problem of maintaining an impervious surface area for more than 40% of the front yard … versus the harm that would result to the home at this location from the removal of all of the concrete in excess of 40% of the surface area.

         The City appeals this judgment.

         As an initial matter, this Court ordered the City to submit a brief addressing whether this appeal is and/or became moot when the preliminary injunction expired after 180 days. We do not find this appeal moot, as a justiciable controversy remains between Wimsatt and the City, which has yet to be decided in a trial on the merits.[5] Instead, we find that the district court erred by limiting the application of the preliminary injunction to 180 days. "It is well-recognized that preliminary injunctions are an interlocutory ruling 'designed to preserve the status quo as it exists ...

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