Agenda - Planning Commission - 08/06/2015

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Zoning Bulletin June 25, 2015 !Volume 9 Issue 12 and Peuuits for an initial determination of the existence of the nonconforming use, said the court. In this case, Antoine's had sought a permit for the existence of its nonconforming use of live entertainment and submitted 14 affidavits from em- ployees and members of the family owning Antoine's. The court found that each affidavit indicated the length of time the affiant had worked at and been "familiar with all facets of the operations of Antoine's," dating back to 1955; and the court found that each affiant attested that Antoine's "has had live entertainment with no interruptions in excess of six months as part of the Antoine's experience" during the entire period of the affiant's tenure at Antoine's. Again, the Opponents had argued that, to establish a legal nonconforming use of live entertainment, more specific information than that provided in Antoine's submitted affidavits was required about the regular, continuous use of live entertainment. The Opponents had argued that the affidavits lacked necessary specificity regarding the frequency and duration of the nonconfoun- ing use, as required by the 4/5 rule of CZO Article 13, § 13.6.1. However, the Department's Director had interpreted the 4/5 rule in terms of the use of the property to operate a business. The Director had found that the 4/5 rule was satisfied here by the fact that Antoine's operated a business upon the property for four hours a day, five days a week, and the nonconforming use for live entertainment had been a regular and continuous part of Antoine's operations. The Director had concluded that the nonconfoiniing use itself did not need to continuously operate for four hours a day, five days a week. Here, the appellate court found that the evidence (the affidavits) provided by Antoine's established that Antoine's had been operating at the property since prior to the original 1956 Code of Ordinances and had offered live entertainment as a regular and continuous part of its operation of the restaurant complex since 1955, 15 years prior to the adoption of the 1970 ordinance restricting live entertainment in the zoning district in which Antoine's was located. The court noted that, on the basis of that evidence submitted by Antoine's the Director made a decision, and the BZA affiuned, that the exis- tence of a nonconforming use had been sufficiently established. The court noted that the Opponents failed to produce any contradicting evidence. Ac- cordingly, the court affirmed that BZA's decision upholding the Depaitment Director's issuance of the Mayoralty Permit for live entertainment to Antoine's based on establishment of a legal nonconforming use of live entertainment. See also: Humphrey v. Robertson, 709 So. 2d 333 (La. Ct. App. 4th Cir. 1998). See also: Phillips' Bar & Restaurant, Inc. v. City of New Orleans, 116 So. 3d 92 (La. Ct. App. 4th Cir. 2013), writ denied, 123 So. 3d 1226 (La. 2013) and writ denied, 123 So. 3d 1227 (La. 2013). © 2015 Thomson Reuters 9