Agenda - Planning Commission - 08/03/2006

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Page 6 -July 25, 2006 Z.B. Nonconf~rming Use - Community groups seek injunction on hotel operating-as nonconforming use Claim property's use as a hotel was not continuous Citation: FQCPQR v. Brandon Investments, LLC, Court of Appeals of Louisiana, Fourth Circuit, No. 2005-CA-0793 (2006) LOUISIANA (03/29/06) - Brandon Investments, LLC, owned property that had been operated as a hotel for a number of years under occupational licenses in the city of New Orleans. The property was located in a residential zoning district and operated as a nonconforming use. In 2002, after receiving all of the necessary approvals, Brandon began to renovate to the premises. TheVieux Carre PropertyOwners~ Residents and Associates Inc., and the French Quarter Citizens for the Preservation of Residential Quality (commu- nity groups) filed an action alleging that the propertY did not operate as-a hotel during the renovations period and, therefore, had lost its nonconform- ing status. The community groups sought an injunction that would prohibit Brandon from operating the property as a hotel, but the court denied the request. The community groups appealed. DECISION: Affirmed. A nonconforming use was'a use that was valid and-lawful prior to the enactment of a zoning ordinance that was allowed to continue even though the zoning ordinance prohibited that use. Further, under the New Orleans zoning ordinance, a nonconforming use had to be continuous. A lapse in the noncon- forming use for.a period of six months would result in the loss of the noncon- forming use status. The community groups alleged that the hotel was vacant for a six-month period, from February 2004 through July 2004. As such, they argued that the property's nonconforming status was lost. . Brandon contended that guests had stayed at the hotel from March 2004 through July 2004. In addition, Brandon maintained that the hotel manager had remained on the premises during the renovations and had performed duties incident to the management of the hotel. The community groups also alleged that the structural alterations to the property caused a loss of its nonconforming use status, as provided in the zoning ordinance. However, at trial, Brandon introduced evidence that showed the renovations - replacement of doorways and transoms, and installation of condensing units on the outside of the building - were minor alterations that were not structural in nature. J The. appeals court ruled that the lower court did not err by refusing to grant a preliminary injunction. By maintaining the status quo, the lower court main- tained the rights of both parties. The community groups still could prevail at trial, but the evidenc'e produced by Brandon at the hearing was sufficient to 98 @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. l , ~\:...