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The Cuny Family, LLC v. Parish of Jefferson

Court of Appeals of Louisiana, Fifth Circuit

December 26, 2019

THE CUNY FAMILY, LLC
v.
THE PARISH OF JEFFERSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 774-896, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, THE CUNY FAMILY, LLC Robert G. Harvey, Sr. Donald C. Douglas, Jr.

          COUNSEL FOR DEFENDANT/APPELLEE, THE PARISH OF JEFFERSON Loren C. Marino

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

          STEPHEN J. WINDHORST JUDGE.

         Appellant, The Cuny Family, LLC, appeals the January 23, 2019 judgment in favor of The Parish of Jefferson, affirming the Jefferson Parish Council's ("the Council") decision to deny appellant's application to rezone property.[1] For the reasons stated herein, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This appeal concerns the Council's denial of appellant's request for rezoning of its property located at 808 Bonnabel Boulevard ("Bonnabel property") in Metairie, Louisiana, from R2 family residential to C1 neighborhood commercial/ZPZ. Appellant owns the property located at 1805 Veterans Memorial Boulevard where a Taco Bell is currently located. The Taco Bell is hindered with limited parking and is in need of additional space for this and other purposes. Appellant acquired the adjacent Bonnabel property, and filed an application to rezone the Bonnabel property from R2 to C1, seeking to provide additional parking and queuing for the Taco Bell. Upon consideration of appellant's application for rezoning, the Jefferson Parish Planning Department ("the Planning Department") recommended approval of the application.

         On May 25, 2017, the Planning Advisory Board ("the PAB") conducted a public hearing. At the hearing, one person spoke in favor of and eight people spoke in opposition to the application for rezoning. The PAB voted to defer the matter until the next public hearing. At the hearing on June 29, 2017, one person spoke in favor of and nine people spoke in opposition to the application.

         Brian Cuny testified on behalf of appellant, and argued that the application should be granted for the following reasons: (1) appellant has assured the next door neighbor that the lighting, noise, and beautification of the area would be to his satisfaction; (2) traffic flow will be improved for the neighborhood; (3) elimination of employee parking in the neighborhood; (4) improve safety by eliminating drive-through backup on Veterans Memorial Boulevard and Bonnabel Boulevard; (5) changing zoning will protect the neighborhood from future unwanted commercial business, such as bars; (6) if rezoning is granted, appellant will grant an easement to the Parish; (7) increase in sales and property tax to the Parish; (8) if rezoning is granted, the addition of the Bonnabel property to the Taco Bell will make the depth of the property from Veterans the same as that of Walgreens, which is across Bonnabel Boulevard; (9) the Planning Department recommended approval; and (10) neighbors, family, and friends requested appellant to make these improvements to the property. Mr. Cuny stated that the rezoning would allow for 12-14 additional parking spaces and 10-12 more spaces in drive-through queue.

         Several neighbors, including the president of the Bonnabel Civic Association ("the Association"), opposed the application for rezoning for the following stated reasons: (1) a petition was obtained with over 100 signatures from the neighborhood opposing the application; (2) the neighborhood has consistently opposed commercial encroachment, and the Council has denied similar requests for rezoning; (3) granting the rezoning will encourage other businesses to reapply for rezoning requests which were previously denied by the PAB or Council; (4) granting the application would affect the quality of life of the neighborhood due to increased noise, traffic, and litter; (5) late hours of the Taco Bell; (6) 3:00 A.M. garbage pickup at Taco Bell; (7) opposition to commercial encroachment in their "backyard;" (8) unwanted removal of two old trees on the property; and (9) neighbors want to maintain the quiet, family residential nature of the area.

         In rebuttal, Bonnabel Boulevard resident and counsel for appellant, Robert Harvey, spoke on behalf of appellant, arguing that the neighbors who signed the petition circulated by the opponents were not truthfully told the facts regarding the rezoning. He testified that granting the application would increase revenue for the Parish and beautify the area. Mr. Cuny showed a video of the U-turn directly in front of the property and its dangers. He testified that allowing the rezoning for additional parking and queuing would remove vehicles from the street. He further argued that no resident should have the U-turn in front of their house. Following the hearing, a motion was made to deny the application for rezoning. The PAB recommended denial of appellant's application for rezoning.

         The matter was heard before the Council on July 12, 2017. Raymond Landry, Mr. Cuny, and Mr. Harvey spoke on behalf of appellant arguing the same reasons in favor of rezoning that were previously addressed at the PAB hearing. Mr. Cuny presented photographs and a video to the Council. Three neighbors, including the president of the Association, spoke in opposition to appellant's application for rezoning, arguing the same reasons as previously provided at the PAB hearing. After hearing proponents in favor of and against the rezoning, Councilwoman Jennifer Van Vrancken acknowledged that both sides made valid, compelling points. She further stated that she was aware that the U-turn was a problem in that area and the Parish was looking into the situation. Thereafter, however, Councilwoman Van Vrancken moved for denial of the application and the Council denied appellant's application for rezoning.

         Appellant appealed the Council's denial of its application for rezoning to the Twenty-fourth Judicial District Court. After a hearing on November 30, 2017, the trial court remanded the matter to give appellant an opportunity to educate the Association, to which it previously was not able to ...


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