ROLAND L. BELSOME, Judge.
This appeal raises the question of whether private associations have standing to prevent alleged violations of New Orleans city zoning ordinances. Because the organizations in this case have failed to demonstrate a real and actual interest in the suit, we affirm the trial court's grant of the exception of no right of action.
Appellants in this case, Vieux Carre Property Owners, Residents, and Associates, Inc., and French Quarter Citizens for the Preservation of Residential Quality, Inc., filed a petition for declaratory judgment and preliminary and permanent injunction on September 13, 2006 against Appellees, Hotel Royal, L.L.C, 1004-1006 Royal, L.L.C, 625 St. Philip, L.L.C, and The Melrose Group, L.L.C, alleging that Appellees violated various zoning ordinances. These violations, Appellants argued, threatened the character and charm of the French Quarter.
On January 4, 2007, Appellees filed Exceptions of Lack of Procedural Capacity, No Right of Action, and Prescription, asserting that Appellants lacked standing to file and prosecute their claims against Appellees and that such claims were also prescribed. Appellees further argued that Appellants, as private, non-governmental, and non-profit corporations, were improperly assuming the role of a government agency in seeking to enjoin Appellees from allegedly violating zoning ordinances of the City of New Orleans. Appellees further argued that Appellants had no right of action because they failed to allege special or actual damages to themselves, as opposed to society in general.
After a hearing on January 16, 2009, the trial court sustained Appellees' Exception of No Right of Action.
"Peremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law." Fortier v. Hughes, 2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186.
Louisiana has adopted the U.S. Supreme Court's three-part test articulated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), to determine whether an association has standing to
In this case, Appellants' petition alleges violations of the Comprehensive Zoning Ordinances of the City of New Orleans with regard to improper expansion and conversion of buildings. Specifically, Appellants urge the following as damages for these alleged violations:
We find that Appellants failed to meet the first prong of the Hunt test because a concrete injury to the members of the Association has not been established in this particular case; rather, Appellants have alleged injury to the Vieux Carre/French Quarter neighborhood as a whole. The damages alleged allude to the general deterioration of the "quaint and distinctive character" of the Vieux Carré rather than asserting an actual injury to its members. Whether the character or charm of a neighborhood has deteriorated is purely subjective; as such, it is not susceptible of measurement. Moreover, other alleged damages, such as the possibility of the creation of additional traffic, congestion, and noise as a result of Appellees' alleged zoning violations, are hypothetical in this case, and Appellants have failed to show that such other alleged damages are "present or probable for the future." See Louisiana Hotel-Motel, 385 So.2d at 1197. Accordingly, Appellants have not shown that there exists, either on their part or the part of their members, any real or actual
The Louisiana Supreme Court recognized that in Hunt, "the association which brought the action ... had shown clear, direct economic injury to the members thereof." Louisiana Associated General Contractors, Inc. v. State of Louisiana, 95-2105 (La.3/8/96), 669 So.2d 1185, 1191, n. 4 (emphasis added). The Louisiana Supreme Court also applied Hunt's three-part test in Ramsey River Road Property Owners Association v. Reeves, noting that "[i]t is axiomatic" that the plaintiff property owners' association "have a `real and actual interest' in the action he asserts before the courts will entertain his suit." Ramsey River Road Property Owners Association v. Reeves, 396 So.2d 873, 874 (La.1981).
In contrast, as was the case in Louisiana Hotel-Motel, Appellants "have not shown that the members of their organizations could bring a suit; they have not shown any harm (present or probable for the future) which would occur to the members." Louisiana Hotel-Motel, 385 So.2d at 1197.
For the foregoing reasons, the trial court's judgement is hereby affirmed.
BAGNERIS, J., dissents with reasons.
BAGNERIS, Judge, dissents with reasons.
I respectfully dissent from the majority's finding that the organizations in this case have failed to demonstrate a real and actual interest in the suit.
The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(6); La.Code of Civ. Proc. Art. 681. Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman-Tag Construction Co., L.L.C. v. Hotard, 00-2298, 00-2299, pp. 2-3 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 859.
Applying the criteria in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), I find that Plaintiffs do have standing to bring this suit against defendants because (1) they have shown that the members of their organizations could bring a suit because of the harm (present or probable for the future) which would occur to the members; (2) they have shown the purpose for which their organizations were formed and why the claims being asserted relate to the purpose of the organization; and (3) they have shown that the relief being sought does not require the participation of the individual members. Accordingly, I would reverse the judgment of the trial court.
Considering the application for rehearing filed by Appellants in the above-captioned matter, the request for a rehearing
JONES, J., dissents.
JONES, J., dissenting.
I respectfully dissent and would deny the application for rehearing.
ROLAND L. BELSOME, Judge.
Appellants, Vieux Carre Property Owners, Residents, and Associates, Inc. and French Quarter Citizens for the Preservation of Residential Quality, Inc., appealed the trial court's grant of Appellees' Exception of No Right of Action. After hearing arguments, this Court affirmed the trial court's judgment. Vieux Carre Property Owners, Residents and Associates, Inc. v. Hotel Royal, L.L.C, 2009-0641 (La.App. 4 Cir. 2/3/10), 2010 WL 395912, 55 So.3d 1. Rehearing in the matter was granted and arguments heard on October 20, 2010.
Appellants filed a petition for declaratory judgment and for preliminary and permanent injunction against Appellees, Hotel Royal, L.L.C, 1004-1006 Royal, L.L.C, 625 St. Philip, L.L.C, and The Melrose Group, L.L.C, alleging that Appellees had violated various local zoning ordinances. In response, Appellants filed Exceptions of Lack of Procedural Capacity, No Right of Action, and Prescription, asserting that Appellants' claims were prescribed and that Appellant lacked standing and a right of action. After a hearing, the trial court sustained Appellees' Exception of No Right of Action, and this Court affirmed.
We granted rehearing in the matter to expand upon our reasoning in this Court's previous decision.
Judgments sustaining an exception of no right of action are reviewed de novo. Fortier v. Hughes, 2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186.
Whether Appellants have standing to bring suit on behalf of its members involves a three-part inquiry. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Louisiana Hotel-Motel Association v. Parish of East Baton Rouge, 385 So.2d 1193, 1196 (La.1980). The three-part test set forth by the United States Supreme Court, and adopted by the Louisiana Supreme Court, involves first determining whether the members of the organization would otherwise be able to bring suit in their own right; second, whether the interests the association wished to protect were pertinent to its purpose; and third, the organization must also establish that neither the claim asserted by the association nor the relief sought required the participation of individual members.
Appellants' petition for damages alleged that failure to enjoin the expansion of Appellees' property "threatens the architectural, historical, cultural and aesthetic integrity, and values of the Vieux Carre" and "adversely affects the tout ensemble of the Vieux Carre and opens the entire Vieux Carre to significant alteration of the character and massing of its existing historic buildings" which would "adversely affect[]"
In affirming the decision of the trial court, this Court determined that Appellants did not satisfy the first prong of the three-part test because Appellants failed to establish harm that was "present or probable for the future" for its members and also failed to demonstrate "clear, direct economic injury to [its] members." Louisiana Associated General Contractors, Inc. v. State of Louisiana, 95-2105 (La.3/8/96), 669 So.2d 1185, 1191, n. 4; see also Louisiana Hotel-Motel, 385 So.2d at 1197. As the Hunt test is phrased in conjunctive terms, the failure to satisfy any part of the inquiry is dispositive, and further examination is unnecessary.
It is well-settled in Louisiana that a plaintiff must have a real and actual interest in the action he asserts. La. C.C.P. art. 681. Without a showing of a special interest that is separate and distinct from the interest of the general public, a plaintiff may not proceed. League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441, 447 (La.1980); Richardson v. Reeves, 600 So.2d 138, 140 (La.App. 2 Cir. 1992).
Applying the first prong of the Hunt!Louisiana Hotel-Motel test, we find that the first threshold requirement, the demonstration of harm that is present or probable for the future, was simply not established in this case. See Hunt, supra. Appellants merely asserted that Appellees' alleged zoning violations would result in a decline in the charm and distinctive character of the neighborhood as a whole, the Vieux Carre. Not only is such an allegation entirely subjective, it is also not susceptible of measurement. Furthermore, the hypothetical possibility of increased congestion and noise as a result of the alleged zoning violations also does not rise to the level of "present or probable future harm." See Hunt, supra.
In Guillot v. Brooks, 26,544, p. 1 (La. App. 2 Cir. 3/1/95), 651 So.2d 345, 346-347, a case relied upon by Appellants, a group of neighbors sought injunctive relief and the enforcement of a zoning ordinance. As this Court previously noted, Guillot involved individual private landowners. See Vieux Carre, supra, at n. 5. The Guillot plaintiffs alleged violations of local zoning ordinances and damages as a result of a neighbor's use of his property as a landing strip for light aircraft. Guillot, p. 1, 651 So.2d at 347. In upholding the trial court's determination that the plaintiffs had standing to sue to enforce zoning violations, the Court acknowledged the evidence that was submitted with respect to specific and concrete damages sustained by the individual landowners as a direct result of the low-flying aircraft:
Id. at pp. 5-6, 651 So.2d at 349. Additionally, the trial court was presented with
Id. at p. 6. Considering the evidence that plaintiffs had presented with regard to individualized, specific damages, as well as evidence of harm resulting from the landing strip's operation, the Court held that the plaintiffs had established "significant adverse effects upon the value and enjoyment of their property." Id. Notably, the Court also held that the airport's activities "specially damaged [the] plaintiffs." Id. at p. 7.
Similarly, in Redfearn v. Creppel, 436 So.2d 1210, 1211 (La.1983), aff'd in part, rev'd in part on other grounds, 455 So.2d 1356 (La.1984), also relied upon by Appellants, involved two plaintiff homeowners seeking injunctive relief from a hotel's alleged violations of zoning ordinances. In Redfearn, in contrast to the instant case, the plaintiffs put on evidence of actual traffic congestion, including the blockage of individual driveways by parked vehicles, and increased litter in the area:
Id. at 1213.
Appellants argue that Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corporation, which involved an appeal by an association seeking declaratory and injunctive relief for an alleged violation of New Orleans zoning laws, is analogous to the instant case. 1999-0731, p. 1, 746 So.2d 806, 807 (La.App. 4 Cir. 11/10/99). Defendants filed an exception of no cause of action and/or no right of action, arguing that "the Association d[id] not list any damages in its petition and, hence, the Association has no cause of action." Decatur Hotel, p. 2, 746 So.2d at 807. The trial court granted
As previously noted, the three-pronged Hunt test was not applied in Decatur Hotel. The Court referenced Ramsey, Louisiana Hotel-Motel, and Associated General Contractors, acknowledging that Louisiana Courts have previously held that an organization may assert a claim on behalf of its members. Decatur Hotel, 746 So.2d 806, 808-809. Next, the Court cited Redfearn v. Creppel and Guillot v. Brooks for the principle that neighboring residents and individual landowners, respectively, may file suit to enforce zoning ordinances. Id. at 809. The Court had already determined that the Association's petition failed to state any damages sufficient to assert a cause of action; thus, the Court could not conduct a Hunt analysis because no damages had been asserted in the petition. Accordingly, the statement in Decatur Hotel that the Association could assert a claim on behalf of its members is best understood as an affirmation of the Louisiana jurisprudence holding that an association may file suit on behalf of its members,
With respect to Gar-den District Property Owners Association v. City of New Orleans, et al, 98 So.2d 922 (La.App. 4th Cir.1957), it is important to note that it was decided two decades prior to Hunt decision; thus, the Court did not conduct the three-part test when determining whether an association had standing. Likewise, Vieux Carre Property Owners and Associates, Inc. v. City of New Orleans, 246 La. 788, 167 So.2d 367 (La.1964) also pre-dates Hunt and Louisiana Hotel-Motel. While Garden District and VCPRA are indeed still good law, neither can offer guidance with respect to a Hunt analysis. Pursuant to Supreme Court and Louisiana jurisprudence, the Hunt/Louisiana Hotel-Motel test must be applied when determining whether an association has standing to assert a claim on behalf of its members, and all three elements of the test must be satisfied. See Hunt, supra; Louisiana Hotel-Motel, supra.
With respect to Ramsey River Road Property Owners Association, Inc. v. Reeves, 396 So.2d 873, 874 (La.1980), this Court finds that the instant matter is factually distinguishable. In Ramsey, the complained-of activity was construction of a bridge on the Bogue Falaya River, which the plaintiff association argued was navigable; thus, defendants could not construct the bridge without first complying with certain state and federal procedures. Ramsey, 396 So.2d at 875.
The facts of Hunt are also plainly distinguishable from the instant case. In Hunt, the issue was a North Carolina law which impacted apple growers from Washington State, the Nation's largest producer of apples. Hunt, 432 U.S. at 336, 97 S.Ct. at 2438. The apple industry in Washington employed "a stringent, mandatory inspection program" by Washington's Department of Agriculture requiring apples shipped to other states "be tested under strict quality standards and graded accordingly." Id. The Washington apple grades were equal or superior to the USDA standards, and the scheme cost the Washington apple growers approximately one million dollars per year. Id.
North Carolina adopted an administrative regulation that "required all closed containers of apples shipped into or sold in the State to display either the applicable USDA grade or none at all," thus expressly
Id. at 338. Consequently, as a direct result of the regulation, the Washington apple growers were plainly "forced to alter their long-established procedures,
Additionally, the alleged harms are not sufficiently concrete to pass muster under Louisiana Hotel-Motel. The Louisiana Supreme Court has recognized that to establish standing to assert a claim on behalf of its members, an association must demonstrate actual economic injury. Louisiana Hotel-Motel, 385 So.2d at 1197. In finding that a group of plaintiff restaurant associations had established "neither standing to prosecute nor an injury which might have been redressed," the Court noted that Auto Dealers,
The second prong of the inquiry, whether the interests Appellants sought to protect were relevant to its organization's purpose, was arguably met; the VCPORA's mission statement makes reference to "maintain[ing] [the French Quarter's] quant and distinctive character." As previously noted, however, satisfaction of only one of the elements of the three-part inquiry is insufficient to establish standing. Vieux Carre Property Owners, supra, at *8.
Finally, although unnecessary to do so, we consider whether the claim asserted or the relief sought by the association requires the participation of the individual members. See Hunt, supra. We acknowledge that the injunctive relief sought by Appellants in this case may not necessarily require the participation of the individual members. See Louisiana Associated Gen. Contractors, Inc. v. State Through Div. of Admin., Office of State Purchasing, 95-2105, p. 7 (La.3/8/96), 669 So.2d 1185, 1191 (noting that "because the suit merely seeks injunctive and declaratory
For the foregoing reasons, the trial court's judgment is affirmed.
BAGNERIS, J., Dissents with Reasons.
BAGNERIS, J., Dissents with Reasons.
I respectfully dissent from the majority's finding that the organizations in this case have failed to demonstrate a real and actual interest in the suit.
The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(6); La.Code of Civ. Proc. Art. 681. Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Wirthman-Tag Construction Co., L.L.C. v. Hotard, 00-2298, 00-2299, pp. 2-3 (La.App. 4 Cir. 12/19/01), 804 So.2d 856, 859.
Applying the criteria in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), I find that Plaintiffs do have standing to bring this suit against defendants because (1) they have shown that the members of their organizations could bring a suit because of the harm (present or probable for the future) which would occur to the members; (2) they have shown the purpose for which their organizations were formed and why the claims being asserted relate to the purpose of the organization; and (3 they have shown that the relief being sought does not require the participation of the individual members. Accordingly, I would reverse the judgment of the trial court.
Likewise, Guillot v. Brooks also involved individual private landowners. The landowners sought to enjoin a neighboring landowner from using his property as a landing strip. Guillot v. Brooks, 26,544 (La.App. 2 Cir. 3/1/95), 651 So.2d 345, The Second Circuit found that plaintiffs demonstrated that they were specially damaged because the zoning violations had diminished the plaintiffs' property values. Guillot, 651 So.2d at 349.
Additionally, Vieux Carre Property Owners, Residents and Associates, Inc. v. Decatur Hotel Corporation is inapplicable to the facts of the instant case. In Decatur Hotel, when addressing Defendants' argument that an association did not have a right to enforce an action for a zoning violation, this Court stated that the issue of whether an organization has standing to assert a claim on behalf of its members had been answered in the affirmative by the Louisiana Supreme Court. Decatur Hotel, 99-0731, p. 5 (La.App. 4 Cir. 11/10/09), 746 So.2d 806, 809 (citing Ramsey, supra ). This Court also acknowledged the well-settled law that private landowners may enjoin neighboring landowners from violating city ordinances. Id. (citing Redfearn v. Creppel, 436 So.2d at 1213). Notably, this Court ultimately found that the Association nevertheless failed to state a cause of action in their petition, affirming Defendants' exception of no cause of action; thus, this Court did not apply the Supreme Court's three-part Hunt test to determine whether the Association met the three requirements for standing. See id.
Here the record demonstrates that the growers and dealers have suffered and will continue to suffer losses of various types. For example, there is evidence supporting the District Court's finding that individual growers and shippers lost accounts in North Carolina as a direct result of the statute. Obviously, those lost sales could lead to diminished profits. There is also evidence to support the finding that individual growers and dealers incurred substantial costs in complying with the statute. As previously noted, the statute caused some growers and dealers to manually obliterate the Washington grades from closed containers to be shipped to North Carolina at a cost of from 5 to 15 cents per carton. Other dealers decided to alter their marketing practices, not without cost, by repacking apples or abandoning the use of preprinted containers entirely, among other things. Such costs of compliance are properly considered in computing the amount in controversy. Buck v. Gallagher, supra; Packard v. Banton, supra; Alhvay Taxi, Inc. v. City of New York, 340 F.Supp. 1120 (S.D.N.Y.), aff'd, 468 F.2d 624 (C.A.2 1972). In addition, the statute deprived the growers and dealers of their rights to utilize most effectively the Washington State grades which, the record demonstrates, were of long standing and had gained wide acceptance in the trade. The competitive advantages thus lost could not be regained without incurring additional costs in the form of advertising, etc. Cf. Spock v. David, 502 F.2d 953, 956 (C.A.3 1974), rev'd on other grounds, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). Moreover, since many apples eventually shipped to North Carolina will have already gone through the expensive inspection and grading procedure, the challenged statute will have the additional effect of causing growers and dealers to incur inspection costs unnecessarily.
