Town of Brusly VS George M. "Skipper" Grady
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Office Of The Clerk Court of Appeal First Circuit State of Louisiana www la fcca 2 ol Post OffIce Box 4408 Christine L Crow Clerk of Court Baton Rouge LA 70821 4408 225 382 3000 Notice of Judgment June 19 2009 Docket Number Town of 2009 CA 0238 Brusly versus George M TO Skipper Grady Hon William C Dupont Antonio M Clayton 58050 Meriam Street 607 North Alexander Ave P O Port Allen LA 70767 Box 758 Plaquemine LA 70765 M Michael P Fruge Stephen CLAYTON 111 Founders St Ste FRUGE 607 North Alexander Baton Irving Rouge 700 LA 70810 Port Allen LA 70767 You are served with a copy of the opinion in the above entitled of the Uniform Rules of Courts of Appeal hereby Rehearing case Your attention is invited to Rule 2 18 certify that this opinion and notice of judgment were mailed this date to the trial judge all counsel of record and all parties not represented by counsel as listed above I hereby 1 CLERK OF COURT NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 0238 TOWN OF BRUSL Y VERSUS GEORGE M fitJ GRADY SKIPPER Judgment Rendered On JUN 1 9 2009 Appeal from the Eighteenth Judicial District Court In and For the Parish of West Baton Rouge State of Louisiana Docket No 35 250 Honorable William C Dupont Judge Presiding A M Counsel for Tony Clayton Fruge Michael P Town of PlaintifflAppellee Brusly Port Allen Louisiana Stephen M Irving Baton Rouge Louisiana BEFORE 1 J f J 1 L f I Counsel for DefendantslAppellants George Skipper Grady and Court Street Development L L c M PARRO L or McCLENDON AND WELCH JJ McCLENDON J The Town of an Mr injunction Grady appealed Subsequently the We reversed L Lc Development Skipper Grady seeking Brusly filed suit against George M Court defendant by Brusly s judgment granting a Street supplemental a injunction Court Street and Mr and intervened and trial later was After amending petition the permanent injunction merits of property in question Court Street of the owner preliminary injunction a trial a as on a the granted the permanent court We affirm the Grady appealed joined judgment PROCEDURAL AND FACTUAL BACKGROUND previous appeal In the court required was whether Mr Brusly of the After density housing The See as our not review we writ denied compatible with C 1 and the zoning ordinance s numerous medium to high density housing family housing 1 See be may Town of Brusly family housing appeared and due to the to be the usage in would be determined in it is within the interpretation 10 26 07 part by c 8 7 question usage at the time and discretion of the noted 3 Brusly on 2 1157 We the true employed or The effect of multi or high density Of for administration and purview responsible parties zoning ordinance to make those decisions as needed as long unduly detract or erode the rights of private ownership or infringe a See Lozes v Waterson 513 So 2d 1155 Code Zoning Ordinance 7 and 19 32 scarcity of facts the definition of low medium right 966 After we of the decisions do not c housing terms 2006 1320 at p ownership of the property and the actual residential course La 2006 1320 reasonably interpreted to include mandatory shall the a single family dwelling and that as a did not family housing conducted residential categories Zoning Ordinance Sections 19 21 Multi we high to medium density housing Louisiana Code 1 the merits of zoning ordinance listed low not define the density could possibly be described use on Grady v 2007 1627 found that the that low multi To that end Brusly Town of zoning ordinance however did considering likely to prevail Brusly Louisiana Code Zoning Ordinance Sections 19 21 compatible 8 was applicable sections of the Brusly Louisiana Code Zoning App 1 Cir 5 4 07 unpublished So 2d 582 as to determine if zoning ordinance Ordinance grant of the preliminary injunction this the Grady had violated zoning ordinances general analysis La on La 1987 Preamble Brusly as the vested Louisiana contemplated interpreted should be this made we case or in future or to what applied Based cases and the confusion facts definitive decision no the over Brusly had not established that Brusly zoning ordinance how the might be shown on our the actual usage in as the lack of essential general analysis ownership of the property likely it was Grady 2006 1320 at p 3 v on to prevail Therefore we found that we the merits on reversed the Town of grant of the preliminary injunction and remanded After trial a on Street and its to act on Brusly Louisiana manner The the court in the enjoined was property Court or corporations leasing the premises to residential tenants or in any zoning of said property judgment also sustained Brusly s peremptory exceptions raising the objections of Through inconsistent with the commercial or judgment a true owner of the behalf from renting and its located at 557 East Main Street other permanent injunction a agents employees and all other persons firms claiming or the merits of August 29 2008 enjoining the signed acting on no right of action and no cause of action See LSA C C P exceptions Brusly had argued that Court Street prior proceeding for Thus Court Street s a was art 927 not before the preliminary injunction and had not been demand for damages in its intervention should be dismissed On appeal Court Street and the trial error to the grant of the interpretation of the and the trial court s maintenance of zoning ordinances plaintiff s peremptory court s exceptions raising the objections of to Court Street s filed in this court a action Grady assigned unconstitutional permanent injunction as Mr claim for no damages right of action and of no cause See LSA C C P art 927 of action Appellants also peremptory exception raising the objection of no cause of See Id APPLICABLE LEGAL PRINCIPLES An injunction shall issue otherwise result to the If LSA C C P art applicant 3601 A where or irreparable injury loss in other cases damage may specifically provided by law preliminary injunction is 3 or an interlocutory judgment injunctive relief Generally an prevail Louisiana App 1 Cir 1983 for a preliminary injunction must 1 show that he will applicant 95 2396 Systems Inc is not necessary for App 2005 2499 16 p denied 51 97 2854 98 0750 The 6 p La La 5 8 98 La Cir 1 App However where the threatened action is shown prohibitory law such as a valid Jones v City of New Orleans 2 20 98 718 SO 2d 433 plaintiff need only show a 93 0690 30 p v La Board of Ethics for Elected Officials 1 Cir App it zoning ordinance Board of Commissioners of Orleans Levee District 97 2686 See convincing evidence plaintiff to show irreparable harm 640 So 2d 237 253 University of 691 So 2d 324 1 Cir 3 27 97 clear and proved by 262 a La Hayden v 951 SO 2d 247 Board of Trustees for 6 p harm must be prima facie showing that he is likely to a v Brennan to be in direct violation of 7 5 94 permanent La Systems 12 20 06 the merits for on Treen 442 So 2d 757 763 Irreparable Vartech trial v the merits on a Freeman irreparable harm and 2 make suffer 328 ending to maintain the status quo designed 709 So 2d 841 98 0782 La 845 719 So 2d 5 8 98 violation of the ordinance writs by the defendant City of New Orleans 93 0690 at p 30 640 So 2d at 253 The issuance of a permanent injunction takes place only after the merits in which the burden of proof is a trial a preponderance of the evidence on On appeal of the permanent injunction the appropriate standard of review is the manifest error or clearly wrong standard Feliciana Parish Police 8 10 05 515 923 So 2d 45 53 Under this standard entirety and find that a Jury v Parish of East Guidry 2004 1197 writ denied the court of 2005 2288 appeal La p Feliciana 14 La 3 10 06 1 Cir App 925 So 2d must review the record in its reasonable factual basis does not exist for the finding and further determine that the record establishes that the fact finder is wrong or manifestly erroneous supported in light of the record the East Feliciana 923 So 2d at 53 East If the trial court are reasonably court of review may not reverse Parish of East Feliciana Parish Police s findings clearly Jury 2004 1197 at pp 14 15 The zoning ordinance states regulations in the a use entitled a No Zoning Schedule shall hereafter be building expressly permitted by and Section 19 32 Section 19 32 10 C 1 except in conformity with the hereinafter as Light Commercial provides other Compliance specified for the district in which it is located and herein regulations 19 30 pertinent part that in unless for used Section in as set forth provided part as follows permitted in B 1 Transition and other uses including but not limited to the following where the use is determined to be compatible with the Brusly Land Use Plan the Brusly Land Use Principles and other criteria as set forth in C 1 by the Zoning Commission and Town Uses Permitted All uses similar limited commercial Council in the first Following the quoted material permitted and prohibited Section 19 21 states that of the institutions housing such and organizations commercial are c zoning ordinance is entitled specifically Brusly land applies to commercial property and under compatible with commercial Uses lists of are uses Section 19 21 principles paragraph and colleges as Under agriculture medium are Uses 7 c high density universities 8 c and use research incompatible with heavy industry and low density housing APPLICATION OF LEGAL PRINCIPLES TO FACTS PERMANENT INJUNCTION Brusly highlights the language permitted by and argues that Section 19 32 10 Brusly s clearly allows paragraph only the 19 30 permitted because residential Section not Section a uses by the zoning ordinance housing is disallowed As written the allowed conclusion that residential B 1 are in We use expressly specifically listed in disagree and reject housing is not specifically listed all in C 1 19 32 10 does not appear to be only the specific permitted but also allows the a permitted and other similar limited commercial uses in uses uses listed the first including ambiguous and below the first paragraph referencing but not limited to Brusly Land Use Plan the Brusly Land Use Principles and other criteria 5 it See LSA C C art 9 Emphasis added in permitted by and Permitted in the first Section 19 30 Thus conformity with does not by Brusly would also cast doubt responsible for interpreting the zoning ordinance specifically listed And zoning ordinance providing compatible of the sections render uses were yet both compatible permitted eliminate the need uses and prohibited uses appear Uses reading adopted narrow allotted to the any discretion on uses negate the other The paragraph of Section 19 32 by allowing parties meaningless the and if only prohibited uses uses to list throughout the zoning ordinance However asserted on appeal rejection of the Brusly interpretation we also decline to accept the expansive interpretation of the Neither the appellants Brus y our notwithstanding from enforcing zoning ordinance the nor applicable sections permitted by the zoning ordinance as to our previous opinion prohibits or exercising the discretion what conforms to and is appropriate for C 1 Applying the applicable zoning ordinance sections we cannot say that exist reasonable basis for the manifestly The record erroneous that the that the use duration and of the trial court does not property for was residential appeal provides on purposes apparently included who used the space for a living sufficient was no more area in sporadic than use was one by family one occupancy Zoning Ordinance Section 19 28 unclear as to the duration and use of the space the property as a living As in the use See uses a and of uncertain or one person at a of the business lessees conjunction with the business permit allowing residential or support for informal appears from the record that the business lessee did not have or an clearly wrong zoned C 1 and leased for commercial At the time of trial the residential time finding that the record establishes that the fact finder is or finding a to the record before us a use and it residential lease Brusly Louisiana Code previous appeal the testimony was particular circumstances surrounding the partial area and as to any future The trial court could also have 6 plan for residential use of reasonably found that the existing sustain low building could only density housing which is listed zoning and may be prohibited by Brusly through the parties with commercial See responsible for zoning decisions Section 19 21 Preamble Based findings we cannot granting the permanent injunction Therefore enjoins the low of the owner to the extent that the property Court Street through its agents its behalf residential in a manner that is inconsistent with the housing is affirmed clearly prohibits colleges medium to or we as a anyone zoning ordinance general rule and in the future It follows then high density housing or all residential institutional hospitals regardless of the characteristics particular usage or zoning ordinance do not find that the housing for C 1 now or in judgment interpretation of the trial court judgment in question such holding that C 1 prohibits example However all residential that any broader not was leasing the premises in question for from on judgment density say that the trial court erred purporting to act the sufficient density that low as a 1 those on qualified and that building would only support low density compatible with C provided In summary the record 8 c Brusly Louisiana Code Zoning Ordinance basis for the trial court to conclude that the usage the incompatible as property would be dicta and in housing for housing such as circumstances of the or error as a at this time CONSTITUTIONALITY OF ORDINANCE It is well established that litigants the trial court rather than in the challenge must be a for this court s review appellate courts and that the constitutional Taylor in the court below v and so Clement 2006 2518 p So 2d 721 723 appeal will not review the issue of for the first time were in requirement is to allow the parties to brief and argue the contradictory hearing we challenges specially pleaded and the grounds for the claim particularized The purpose of this issue at must raise constitutional In the absence of those on appeal prerequisites provide as 3 La is the a full record 2 2 07 case in 947 this constitutionality of the ordinance raised Questions of interpretation necessary to this appeal considered and resolved in reviewing the issue of the permanent injunction 7 DAMAGES On Brusly Court Street asserts that the trial court erred appeal peremptory exceptions which attacked Court Street s damages and in denying the damages sought intervention was not the proper granting right to obtain In response in its intervention to claim Brusly challenges Court Street s right s in damages and noted that procedural vehicle to pray for damages an See LSA C C P art 3608 Regardless exceptions The same we find demand not a and or of whether the the trial court dismissal of the intervention s in the denial motion to dissolve denied via the were damages sought by Court Street no error or damages were denied ccP enjoined 3608 art or the result is the by the trial court and Even if Court Street had filed a reconventional pursuant to LSA C C P art 3608 Court Street party before the trial court during the hearing was not grant of the on the preliminary injunction prevented from acting through another agent See LSA We also note that the record does not contain calculable evidence of was specific or damage to Court Street APPELLANTS NO CAUSE OF ACTION The appellants argument to be based that even claimant p 3 La 4 17 06 more on a if the App failure of allegations See Adams 1 Cir on v 9 23 05 926 So 2d 514 exception of proof were Owens the or proved lack of evidence the 921 So 2d 972 975 LSA CC P was likely to an art 927 writ denied prevail argument to the More court 2005 2501 importantly We reiterate that After we undisputed facts Brusly had or we La again previously held that the question of the preliminary injunction determined that under the few clear that it than Corning Fiberglas Corporation 2004 1296 property could be used for all residential purposes on of action appears they would not afford relief disagree with appellants assertion that this general analysis no cause in our merely not shown considering Brusly s petition and amended petition in light of the above and accepting the allegations 8 as true we find that appellants of did not meet their burden of no cause of action For these assessed equally M we deny appellants exception See Id reasons to proof and we affirm the judgment The costs of the appeal are appellants Court Street Development L L c and Mr George Skipper Grady AFFIRMED EXCEPTION DENIED 9
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