Agenda - Planning Commission - 11/12/2015

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Zoning Bulletin October 10, 2015 I Volume 9 I Issue 19 that would be an impermissible intensification of the nonconformity in direct conflict with the clear language of the City's zoning ordinance. Mannino's appealed the Depattnrent's decision to the BZA. The BZA denied the appeal and upheld the decision of the Department. Mannino's again appealed. The trial court affirmed the BZA's decision. It concluded that the sale of high -alcohol content beverages was neither a permitted use nor an accessory use for a retail store located in HMC -2 having less than 5,000 square feet of floor area. It also agreed that allow- ing Mannino's to sell high -content alcohol would be an intensification of the nonconforming use of low -alcohol content beverages, which the City zoning ordinance did not allow. DECISION: Judgment of district court affirmed. The Court of Appeal of Louisiana, Fourth Circuit, held that the BZA did not act arbitrarily and capriciously in denying authorization to Man- nino's to sell high -alcohol content beverages. Reviewing the City's zoning ordinance the court also concluded that the sale of high -alcohol content beverages was neither a permitted use nor an accessory use for a retail store located in HMC -2 having less than 5,000 square feet of floor area. The court further affirmed that it would be an intensification of Mannino's nonconforming use to perinit the sale of high -alcohol content beverages. Mannino's had argued that the law did not distinguish between low - alcohol content beverages and high -alcohol beverages. Mannino's had fur- ther u- ther argued that the sale of high -alcohol content beverages was the same character, nature, and purpose as the original use (of selling low -alcohol content beverages), and it would have no adverse effect on the neighborhood. The appellate court disagreed. While the court acknowledged that the City's zoning ordinance did not define the types of alcohol, it found it clear that governing case law made a distinction as it applies to zoning disputes. The distinction, noted the cited case law, was "reasonably related to promoting the public's health, safety, and/or general welfare." Moreover, the court found that when considering the use of property located in a historic zoning district, such a distinction was not unreasonable. The court also found that case law supported the conclusion that the sale of high -alcohol content beverages was an illegal intensification of a nonconforming use because it was in fact different in character, nature, and kind from the original use. The court found it clear that the BZA's de- cision was consistent with governing case law, as well as with promoting health, safety, morals, and/or general welfare of the community. Accord- ingly, the court concluded that the BZA's decision was not arbitrary and capricious, and should therefore be upheld. See also: Toups v. City of Shreveport, 60 So. 3d 1215 (La. 2011). © 2015 Thomson Reuters 11