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Business Litigation

Nonconforming Uses Of Residential Property

In Tolmas v. Parish of Jefferson, 47,555 (La. App. 2 Cir. 2/20/13), — So.3d —, the Louisiana Second Circuit Court of Appeals addressed how prior exceptions to the parish zoning regulations applied to subsequent landowners of a commercial property attempting to develop the property. In order for a subsequent landowner to take advantage of the exceptions to zoning regulations obtained by the prior owner, they must maintain the nonconforming use. Thus, property developers should pay particular attention when purchasing property with nonconforming uses approved by the Parish. If the nonconforming use is changed to a conforming use, the Parish will have to reapprove the nonconforming use, and the development of the property may incur delays and costs.

Nonconforming Use

In this case, Oscar Tolmas purchased a piece of property in Jefferson Parish.[1] The majority of the property was to be developed as a residential neighborhood, but a portion of the development was designated as a site for a commercial business. Despite the residential zoning designation and the Comprehensive Zoning Ordinance, Jefferson Parish allowed the use of the property for commercial purposes in keeping with its prior approval of the subdivision plans.

Mr. Tolmas placed shells on the parking lot to improve access to his commercial property from the main thoroughfare. The Parish sent a letter to Tolmas indicating that the shells were on public property and interfered with a street beautification program by the Parish. Tolmas received a permanent injunction “prohibiting the Parish from doing any act which would interfere with his peaceful possession of his property, including his right to frontage ingress and egress between Veterans and his property.”

In 2004, the commercial office building constructed by Tolmas was demolished, and Morning Park, LLC purchased the property. In 2010, Morning Park, LLC sought to obtain a building permit to construct an office building and parking garage. The Parish denied Morning Park’s permit request to use the property for an office building. Morning Park filed a motion to enforce the permanent injunction obtained by Tolmas that restrained the Parish from interfering with the use and development of the property for an office building. The trial court found in favor of Morning Park and enforced the permanent injunction.

Must Maintain Nonconforming Use

On appeal, the court reversed the decision of the trial court. The court explained that the permanent injunction did not involve the zoning issues for the use of the property which are now in dispute. The injunction only resolved Tolmas’ right to ingress and egress from the property.

The Court went on to explain the purpose of zoning ordinances. “A person who purchases land with knowledge, actual or constructive, of zoning restrictions which are in effect at the time of such purchase, is said to have created for himself whatever hardship such restrictions entail.” Id. at *3, citing Sanchez v. Board of Zoning Adjustments of City of New Orleans, 488 So.2d 1277 (La. App. 4th Cir. 1986), writ denied, 491 So.2d 24 (La. 1986), cert. denied, 479 U.S. 963 (1986). Tolmas’ office building was a nonconforming use of the property which was allowed by the parish. A “non-conforming use” is “a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which is situated.” Id. at 4.

The non-conforming use of the property ceased in 2004 when the building was demolished. Because the nonconforming use ceased for more than one year, the nonconforming use changed to a conforming use. Thus, Morning Park is not entitled to make commercial use of the property because the nonconforming use ceased from 2004 until 2010. In dicta, the Court did note that it was not addressing the merits of any zoning issue; thus, Morning Park’s potential remedy is to seek a zoning variance through the appropriate procedures.

In dissent, Judge Sexton considered the permanent injunction to incorporate a broader scope than the majority. The dissent characterized the issue in the case as “whether property along a major thoroughfare in Metairie, Louisiana, currently zoned as residential, may be occupied commercially because of a permanent injunction secured by the current landowner’s ancestor in title preventing the defendant Parish of Jefferson from enforcing the zoning regulations.” The dissent concluded that the Parish consented to a permanent injunction which trumped their zoning ordinance and concluded that the injunctive compromise is superior to and supersedes the zoning ordinance.

This case highlights the need for property developers to examine the history of their property to ensure that it is not bound by restrictions. In January 2013, the Louisiana Second Circuit Court of Appeal in WRW Properties, LLC v. City of Shreveport , 47, 657 (La. App. 2 Cir. 1/16/13), — So.3d —, reaffirmed its prior holdings that a landowner’s right to use and develop is protected when it complies with the zoning ordinance. The Tolmas decision from the Second Circuit addresses when the property is not in compliance with the zoning ordinance; therefore, the property was subject to greater restrictions. Thus, in planning for the growth and development of commercial businesses, it is critical to determine the zoning restrictions on a property to ensure that a property can be developed according to the goals of the business.

[1] Although it may seem odd for the Second Circuit Court of Appeal to hear a Jefferson Parish Case, the Louisiana Supreme Court in Tolmas v. Parish of Jefferson, 2012-0555 (La. 4/27/12), 87 So.3d 855 recused an Appellate Court Judge of the Fifth Circuit Court of Appeal and transferred the case to the Second Circuit Court of appeal “to avoid even the appearance of impropriety.”

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.