V. Louis Goppelt, Jr. and Kathryn E. Goppelt VS Ascension Parish Council and Pat Bell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1698 V LOUIS GOPPELT JR AND KATHRYN E GOPPELT VERSUS THE ASCENSION PARISH COUNCIL AND PAT BELL FE Judgment Rendered MAY 1 3 2010 On Appeal from the Twenty Judicial District Court Third In and for the Parish of Ascension State of Louisiana Docket No 90884 Honorable Alvin Turner Jr Judge Presiding Gonzales Louisiana Counsel for PlaintiffsAppellants V Louis Goppelt Jr and Kathryn E Goppelt Neil O Parenton Jr Counsel for DefendantsAppellees Prairieville Louisiana Ascension Parish Council and Jean Paul Robert Pat Bell Mark G Simmons Baton Rouge Louisiana BEF Counsel for DefendantsAppellees S Barton Enterprises and Steven Dupuy Enterprises E DOWNING GAIDRY QJ DON AN M MCCLENDON J Plaintiffs appeal a judgment dismissing their petition seeking declaratory judgment that a license issued for a sexually oriented business located in Ascension Parish was null and void for failing to comply with the requirements of a parish ordinance and to enjoin any sexually oriented business from operating at that location For the following reasons we reverse FACTS AND PROCEDURAL HISTORY The Ascension Parish Council adopted a Sexually Oriented Business Ordinance effective January 1 2003 regulating all sexually oriented businesses in the Parish The Adult Business Standards were set forth in Sections 17 291 through 295 of the Ascension Parish Development Code Pursuant to Section 17 295 all sexually oriented businesses in existence prior to January 1 2003 were to be treated as non conforming uses and could continue operation On and before January 1 2003 Theron Ladner Enterprises Inc doing business as Escapades Escapades operated an adult cabaret at 17378 Airline Highway in Ascension Parish Although Escapades did not meet all of the new locational requirements it was granted a non conforming use license as it was in existence prior to January 1 2003 In late May or early June 2008 Escapades closed S Barton Enterprises LLC doing business as Silhouettes Silhouettes later applied for a license to operate a sexually oriented business to be located at the same site formerly occupied by Escapades Ascension Parish 17378 Airline Highway in On October 23 2003 the Ascension Parish Council issued Silhouettes a license after it determined that the adult cabaret was a non conforming use of the property On November 7 2008 V Louis Goppelt Jr and Kathryn E Goppelt plaintiffs residents of Ascension Parish filed suit against Pat Bell Chairman of the Ascension Parish Council seeking a declaration that the license was null and void and enjoining any sexually oriented business from locating at 17378 Airline Highway insofar as that location is within 3000 feet of a daycare center which is 2 prohibited by Section 17 294 of the ordinance 4 a Plaintiffs later amended their original petition to add Silhouettes as a defendant and permanent injunction to preclude Silhouettes from prayed for a opening for business Plaintiffs contended that Silhouettes was a new business that must comply with the Parish locational requirements and that it could not take advantage of the s non conforming use clause in Section 17295 Following a trial on February 10 2009 the trial court issued a judgment of involuntary dismissal in favor of defendants and dismissed plaintiffs petition for Plaintiffs declaratory judgment and injunctive relief have filed the instant devolutive appeal to seek review of the trial court ruling 2 s N Zoning ordinances should be construed in favor of unrestricted use of property In Lozes v Waterson 513 So 1155 La 1987 the Louisiana 2d Supreme Court stated In Carrere v Orleans Club 214 La 303 37 So 715 La 2d 1948 we indicated that a zoning ordinance being in derogation of rights of private ownership and curtailing and limiting the use of property must be strictly construed in favor of the property owner and where exemptions appear in favor of a property owner these exemptions should be liberally construed in favor of the property owner See also Wright v DeFatta 244 La 251 152 So 10 2d La 1963 Additionally we have held that a zoning ordinance which is subject to more than one reasonable interpretation should be construed in favor of unrestricted use of property City of Kenner v Normal Life of Louisiana 483 So 903 La 1986 2d Lozes 513 So at 1157 2d The law also plainly requires courts to give great weight to the interpretation given an ordinance by the governing body that had enacted it A 1 Neither defendant has challenged whether plaintiffs have a right to institute this action Although a peremptory exception of no right of action may be noticed by the appellate court on its own motion pursuant to LSAC art 927 we decline to do so in this case given that the P C 6 parties have not raised it and the record does not contain sufficient evidence in this regard to allow us to determine if the exception may have merit Moreover we do not address whether plaintiffs are required to demonstrate a particularized or special interest separate and distinct from the interest of the public at large or whether plaintiffs are afforded a right of action upon a mere showing of an interest however small and indeterminable See Alliance For Affordable Energy v Council of City of New Orleans 960700 p La 7 677 So 424 428 6 96 2 2d z The plaintiffs also filed a motion for new trial on April 3 2009 However the plaintiffs voluntarily dismissed the motion for new trial and a judgment to that effect was signed on August 31 2009 thereby curing any defect with regard to the prematurity of the instant appeal 3 reviewing court should not overturn such a determination unless it is clearly wrong Residents of Shenandoah Estates Subdivision v Green 05 1331 p 8 La 1 Cir 6 938 So 1027 1031 writ denied 062098 La App 06 9 2d 06 8 1 943 So 1095 2d Plaintiffs assert that the trial court failed to recognize that Silhouettes is a newly established sexually oriented adult cabaret that must meet the Parish s locational requirements in order to obtain a license 3 Although Section 17 295 of the Parish Development Code provided a grandfather clause for non conforming uses plaintiffs contend that the clause was limited to businesses that were in existence on January 1 2003 and that the clause did not apply to the use of the property itself Section 17 295 of the ordinance provides Sections 17 291 through 17 295 shall become effective on January 1 2003 However sexually oriented businesses which were in existence as of the effective date of this Division shall be considered nonconforming uses and shaii continue to operate pursuant to the nonconforming uses section of this Code Emphasis added Plaintiffs urge that when Escapades ceased doing business at 17378 Airline Highway in Ascension Parish the chain of continued operation was broken Plaintiffs conclude that any new business located on the property thereafter had to comply with the sexually oriented business ordinance in order to operate an adult business In opposition appellees the Ascension Parish collectively the Parish Council Council and Pat Bell note that Section 17295 provides that businesses that obtained a non conforming use license shall continue to operate pursuant to the nonconforming uses section of this Code The non conforming s Plaintiffs note that Silhouettes was not in existence or in operation on January 1 2003 Moreover Lance Brock the Parish szoning official testified that there was also no evidence that S Barton Enterprises was in existence in 2003 4 Plaintiffs also note that Section 17 292 of the Parish Development Code defines Operate or 1 Cause to Operate as to cause to function or to put or keep in a state of doing business 5 Plaintiffs also filed a motion to supplement the record with portions of the Ascension Parish Development Code but we deny the motion However we take judicial notice of the ordinances sought to be introduced See LSAC art 202 E c 1 B 2 uses are addressed in Section 17 135 of the Parish Development Code The Parish Council emphasizes that Section 17135 focuses on the use of the property and does not limit its provisions to a particular business licensee As such the Parish Council asserts that use of the property is the determining factor in whether a non conforming use license should issue The Parish Council concludes that a reasonable interpretation exists to apply Section 17 295 of the Parish Development Code to the use of the property and as such Silhouettes should be allowed to continue operation at 17378 Airline Highway in Ascension Parish 6 Section 17 135 of the Parish Development Code provides This ordinance does not extend to buildings or land which fail to conform to the uses set forth in this Chapter on the date of enactment of this ordinance The lawful use of any building or land existing as of the date of enactment of this ordinance may be continued although such use does not conform with the provisions of this ordinance provided that a No nonconforming use shall be extended to displace a conforming use b A building that contains a nonconforming use may not be of reconstructed or structurally altered in excess of fifty percent 50 the assessed value of the building prior to construction unless the building is changed to a conforming use approved by the Zoning Commission c A nonconforming land use may be expanded by no more than 50 of the original nonconforming site d Any nonconforming structure declared unsafe by an agent of the Parish may be restored to a safe condition e Once changed to a conforming use no building or land shall be permitted to revert to a nonconforming use f Whenever a building or land used in whole or in part for a nonconforming use becomes and remains vacant for a continuous period of 180 days or whenever the commercial operations carried on in such a building or on such land have been discontinued for a period of more than 180 days the subsequent use of the property must conform to the provisions of this ordinance g An abandoned nonconforming use may be re established within 90 days after the 180th day of the abandonment upon a showing that the continuation of a conditional nonconforming use would not adversely affect the health safety or welfare of the public and is in substantial compliance with existing or permitted uses of adjacent properties h This section shall apply to any nonconforming uses which may arise whenever the boundaries of a district are altered 9 In Ransome v Ransome 01 2361 La 6 822 So 746 App 21 02 2d this court reviewed the statutory and jurisprudential rules for statutory interpretation When a law or oinance is clear and free from all ambiguity it must be given effect as written When interpreting a law ordinance the court should give it the meaning the lawmake intended It is presumed that every word sentence or provision in the law was intended to serve some useful purpose that some effect is to be given to each such provision and that no unnecessary words or provisions were used Conversely it will not be presumed that the lawmaker inserted idle meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless redundant or useless The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it Where it is possible to do so it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the lawmaker the most When the expressions of a law are dubious effectual way of discovering the true meaning of the law is to consider the reason and spirit of it or the cause which induced the lawmaker to enact it When a law is susceptible to two or more interpretations that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory If there is an irreconcilable conflict between the provisions of a law only one provision can prevail Ransome 01 2361 at pp 5 6 822 So at 752 2d Section 17295 of the Parish Development Code limits application of the non conforming use provision to those sexually oriented businesses which were in existence as of the effective date of this Division and allows those businesses to continue to operate pursuant to the nonconforming uses section of this Code Section 17 135 The Parish Council posits that once Escapades obtained a nonconforming use license under Section 17 295 the general non conforming use provision found in Section 17 135 controlled thereafter and allowed the 9 building or land to continue the nonconforming use provided it did not remain vacant for a continuous period of 180 days See Section 17 135 However F this interpretation ignores the fact that the term businesses is the subject of the entirety of Section 17295 As such a plain reading of the non conforming use section found in Section 17 295 indicates that it refers to the particular business licensee that was in existence when the ordinance became effective Thereafter Section 17 135 limits the particular business licensee from further expanding the non conforming use Such interpretation is further evidenced by Section 17 130 of the Parish Development Code which provides that development standards fall into four categories Use namely regulations Structure regulations Site regulations and Other regulations Regulations regarding adult business and alcohol related business are included within Other regulations as opposed to regulations regarding the use site or structure Moreover Section 17 292 of u the Parish Development Code contemplates a scenario where an existing sexually oriented business could be sold transferred or gifted to another person or entity to allow the business to continue operation However ownership or control of Escapades was not transferred to Silhouettes in the manner allowed by the ordinance If the Parish intended the non conforming uses section to apply to the building or the land as opposed to the particular business licensee Section 17 292 would be unnecessary u We also note that the commentary provided under Section 17 135 provides in pertinent part However the ordinance does discourage further investments in these nonconforming uses and uses of a similar nature Such investments would make these uses more rather than less permanent 8 Section 17 292 of the Parish Development Code provides u Transfer of Ownership or Control of a sexually oriented business shall mean any of the following 1 2 3 sale lease or sublease of the business The transfer of securities which constitute a controlling interest in the business whether by sale exchange or similar means or The establishment of a trust gift or similar device which transfers the ownership or control of the business except for the transfer by bequest or other operation of law upon the death of the person possessing ownership or control 7 Considering the foregoing the only reasonable interpretation of the non conforming use provision found in Section 17295 is that it applies to the sexually oriented business entity in operation at the time the ordinance was passed and it does not apply to the building use or the land itself As such we find that the sinterpretation of its ordinance as accepted by the trial court was clearly Parish wrong Accordingly we reverse the trial court ruling dismissing plaintiffs petition s for declaratory judgment and denying plaintiffs writ for permanent injunction We declare that S Barton Enterprises LLC d ba Silhouettes is a new sexually oriented business adult cabaret operation that must comply with the locational requirements found in Section 17 294 of the Parish Development Code As such we enjoin S Barton Enterprises LLC doing business as Silhouettes from continuing to operate an adult cabaret at 17378 Airline Highway in Prarieville Louisiana insofar as the cabaret is located within 3000 feet of a daycare Moreover we enjoin the Parish of Ascension from issuing a license to any other adult business to operate at this location We split the total costs of this appeal between the plaintiffs and the Ascension Parish Council and set the amount of the Parish scosts at 841 as required by LSAR 13 35 S 5112 MOTION TO SUPPLEMENT DENIED REVERSED AND RENDERED r STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1698 V LOUIS GOPPELT JR AND KATHRYN E GOPPELT VERSUS THE ASCENSION PARISH COUNCIL AND PAT BELL DOWNING J concurs and assigns reasons While I do not agree that the Ascension Parish Council s interpretation of its ordinances is clearly wrong I defer to the majority s judgment and concur The majority expends great effort to construct what it concludes is the only reasonable interpretation of the applicable Ascension Parish Ordinances I also believe that we should have noticed an exception of no right of action on our own motion The Goppelts the appellantsplaintiffs make no showing of any particularized interest in bringing this lawsuit The daycare center within 3000 feet of the subject property may have a particular recognizable interest but the Goppelts interest is not apparent from the record This issue should be resolved before we decide this matter Even so out of deference to the majority efforts I concur in the s result
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