Agenda - Planning Commission - 08/06/2015

Home

June 25, 2015 1 Volume 9 1 Issue 12 Zoning Bulletin from staff members and owners of Antoine's attesting to each person's knowl- edge that Antoine's had offered live entertainment as part of its operation on a continuous, uninterrupted basis, since as far back as 1955. The Department's Director, Paul May, reviewed the application and affidavits. The Director approved the issuance of the Mayoralty Permit for live entertainment to Antoine's on April 15, 2011 "pursuant to affidavits of non- conforming use." Subsequently, the Vieux Carre Property Owners, Residents & Associates, Inc., French Quarter Citizens, Inc., and Carol Allen (collectively the "Op- ponents") filed an appeal of the Director's decision with the City's Board of Zoning Appeals ("BZA"). The Opponents argued, among other things: that. the live entertainment permit issued "at a cocktail lounge at one property (713 St. Louis)" was being used "in an attempt to legitimize an illegal use at an- other parcel (725 St. Louis)"; and that Antoine's failed to establish a nonconforming use because the submitted affidavits failed to establish the "4 - hour, 5 -day use required by the CZO." The Opponents argued that CZO Article 13, § 13.6.1 required a nonconforming use be continuously operating for four hours a day, five days a week, and that Antoine's did not offer that frequency or duration of live entertainment. The BZA denied the Opponent's appeal. The Opponents again appealed. The district court affirmed the BZA's decision. The Opponents again appealed. On appeal, the Opponents argued that Antoine's affidavits failed to provide sufficient information about the regular, continuous use of live entertainment to establish a legal nonconforming use of live entertainment. DECISION: Judgment of district court affirmed. The Court of Appeal of Louisiana held that Antoine's had established the existence of a legal nonconforming use of live entertainment. In so holding, the court explained a nonconforming use is defined as "[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 it is situated." The court further explained that a property owner who seeks to es- tablish and retain a nonconforming use has the burden of producing evidence that the nonconfoi ming use of the property has been continuous and consistent. "What constitutes sufficient usage to establish nonconforming status may vary with the facts of each case," but the nonconforming use must be continuous and not interrupted for a period in excess of six months, said the court. In ad- dition, noted the court, the CZO placed the burden on Antoine's (as the prop- erty owner) to establish the existence and retention of a nonconforming use by clear and convincing evidence. (CZO Article 13, § 13.2.1.) Under the CZO, such evidence "shall include, but need not be necessarily restricted to; such documents, as rent receipts, affidavits, documentation of utility services, or other information as may be deemed necessary in a particular case." (CZO Article 13, § 13.7.) At the time a permit or certificate of occupancy is filed, the property owner must produce acceptable evidence to the Director of Safety 8 © 2015 Thomson Reuters