Judge Joy Cossich Lobrano.
In this zoning case, defendant/appellant, City of New Orleans (the "City"), appeals the February 28, 2019 judgment of the district court, which denied several exceptions filed by the City and granted a preliminary injunction in favor of plaintiff/appellee, Suzanne Wimsatt ("Wimsatt"). The preliminary injunction prohibited the City from enforcing a May 9, 2018 administrative judgment from the Department of Safety and Permits, which imposed fines on Wimsatt for violating a city zoning ordinance relative to excessive paving in her front yard and ordered her to remove the excessive paving. For the reasons that follow, we reverse the denial of the City's exception of no cause of action; vacate the remainder of the judgment; and remand this matter to the district court.
This litigation pertains to Wimsatt's short term rental property on Peniston Street in uptown New Orleans, where the
Wimsatt purchased the property via tax sale
On March 12, 2018, the City's Department of Safety and Permits issued Wimsatt a notice that the City had inspected her property and cited her for violating CZO, § 11.3.A.1, Table 13.2, which provides that the maximum impervious surface area of the front yard may not exceed 40%. The notice instructed Wimsatt to remedy the condition within 10 days and contact the City to schedule a re-inspection. On April 3, 2018, the Department of Safety and Permits issued Wimsatt a notice of administrative hearing regarding the CZO violation, setting the hearing on April 18, 2018.
On April 17, 2018, Wimsatt filed a "Petition for Injunctive Relief" ("first petition") in the district court, seeking removal of the City's "flag" on her property such that she could renew her short term rental permit, and enjoining the Department of Safety and Permits from holding the hearing. Wimsatt alleged that her income depends on the permit to operate her short term rental property, and that the "flag" on her property prevents her from renewing the permit. She annexed to her first petition the affidavits of several neighbors attesting that "prior to the acquisition of the property by Ms. Wimsatt from the City of New Orleans the yard surrounding the home was concreted in the same manner that it is now."
On April 20, 2018, the City filed an exception of prematurity on the basis that Wimsatt had not yet exhausted her administrative remedies, as there had not yet been any administrative hearing. The district court agreed and, on May 23, 2018, granted the City's exception and dismissed Wimsatt's first petition without prejudice.
Meanwhile, on May 9, 2018, the administrative hearing went forward, at which an administrative judgment was rendered, finding Wimsatt in violation of CZO, § 11.3.A.1, Table 13.2 for having paved more than 40% of her front yard with an impervious surface. The judgment ordered Wimsatt to remove the excess paving within 30 days and assessed her with a fine of $500.00, a hearing cost of $75.00, plus, after the 30-day abatement period, an additional penalty of $100.00 per day, until the violation is corrected, for a period of up to one year.
Wimsatt appealed the administrative decision to the Board of Zoning Adjustments ("BZA"), which held a hearing on August 13, 2018. While the record before this Court does not contain a complete record of the administrative or BZA
On September 13, 2018, Wimsatt filed a "Petition for Temporary Restraining Order" ("second petition"), contending that her request for injunctive relief against the City was no longer premature.
On September 27, 2018, Wimsatt filed a "Supplemental Pleading in Support of Injunctive Relief" in which she stated that she had obtained the expert opinion of an engineer, who opined that removing the concrete was likely to damage the structure of the home. On September 28, 2018, the City filed a motion to dissolve the TRO. On October 2, 2018, the City filed exceptions of lack of subject matter jurisdiction, prescription, no cause of action, and res judicata.
A hearing on the motion, exceptions, and preliminary injunction went forward on October 4, 2018, at which Wimsatt, her engineer expert witness, and the City's chief zoning official, as custodian of records for the Department of Safety and Permits, each testified. On February 28, 2019, the district court rendered judgment dissolving the TRO, denying the City's exceptions, and granting a preliminary injunction in favor of Wimsatt and against the City as follows:
The City appeals this judgment.
As an initial matter, this Court ordered the City to submit a brief addressing whether this appeal is and/or became moot when the preliminary injunction expired after 180 days. We do not find this appeal moot, as a justiciable controversy remains between Wimsatt and the City, which has yet to be decided in a trial on the merits.
At least one Louisiana court recognized that it is error to grant a preliminary injunction set to expire before the trial on the permanent injunction and ruling thereon, "the practical effect of which was both to grant and to deny the request for a preliminary injunction[.]" Equitable Petroleum Corp. v. Cent. Transmission, Inc., 431 So.2d 1084, 1087-88 (La. App. 2d Cir. 1983)(emphasis in original). As the Equitable court explained:
Id. We agree with this reasoning, and we find that the district court erred as a matter of law in granting a preliminary injunction, which expired by its own terms prior to the trial on the permanent injunction. Nevertheless, for the reasons described herein, we vacate the preliminary injunction as we find that Wimsatt failed to state a cause of action.
Addressing the merits of the appeal, the City sets forth two assignments of error as follows:
The central question in this appeal is whether Wimsatt failed to state a
The City argues, in part, that Wimsatt is not entitled to collaterally attack the administrative judgment via injunction where she has failed to appeal the administrative judgment. The City cites to Chapter 2, Article II, Section 6-41 of the City Code, which provides for a direct appeal to the district court of an administrative judgment finding a code violation, as follows:
M.C.S., Ord. No. 25455, § 1, 8-22-13; M.C.S., Ord. No. 26513, § 1, 7-23-15.
Wimsatt did not avail herself of this remedy. Instead, Wimsatt appealed the administrative judgment to the BZA under a separate procedure, afforded under La. R.S. 33:4727(C)(2)(a), as follows:
"The BZA Rules of Procedure and Policy art. II, § 6 provides that every appeal `shall be taken within forty-five (45) days' from the date of a decision or determination
La. R.S. 33:4727(E)(1) further provides the mechanism for an aggrieved person to seek district court review of adverse decisions of the BZA, stating that:
Nothing in this statute provides for injunction; likewise, nothing in the statute provides that district court review of BZA decisions is an aggrieved property owner's exclusive remedy. Certain cases have permitted aggrieved property owners to file a request for injunction along with a petition for district court review of a BZA decision. See, e.g., C. Napco, Inc. v. City of New Orleans, 06-0603, p. 7 (La. App. 4 Cir. 3/7/07), 955 So.2d 155, 160, on reh'g (5/4/07); City of New Orleans v. JEB Properties, Inc., 609 So.2d 986, 988 (La. App. 4th Cir. 1992).
We find neither any statute nor any reported case, however, which allowed an aggrieved property owner an injunction against enforcement of a BZA decision, where that property owner has not also petitioned for district court review of the underlying BZA decision under La. R.S. 33:4727. Importantly, Subsection E "require[s]" that the petition must "allege that the BZA acted illegally and specify the grounds for the illegality." Cupit v. City of New Orleans ex rel. Bd. of Zoning Adjustments, 12-1708, p. 8 (La. App. 4 Cir. 7/17/13), 120 So.3d 862, 866 (quoting Carrollton/Riverbend Neighborhood Ass'n v. The City of New Orleans, unpub., 11-1737, p. 5 (La. App. 4 Cir. 6/27/12), 2012 WL 4760796).
Wimsatt's second petition lacks any request seeking district court review of the BZA's decision. In the second petition, Wimsatt alleges only that her appeal was "unsuccessful" and that enforcement of the underlying administrative judgment will cause her irreparable harm. However, Wimsatt fails to allege that the BZA's decision is illegal and does not identify any specific grounds of the "illegality."
The BZA decision was attached to the City's exception and admitted without objection. This decision, denying Wimsatt's appeal, indicates that Wimsatt disputed the administrative determination that her property had "not attained legal, non-conforming status for excessive paving and parking." Wimsatt never alleges, however, that the BZA's denial of her appeal, rejection of the non-conforming status argument, or any particular grounds for her appeal's denial, was illegal.
The second petition also characterizes the BZA proceeding as a "hardship appeal." We recognize that the CZO "provides for variances when necessary and appropriate `to afford an applicant relief from the requirements of the letter of the Zoning Ordinance when unnecessary hardship or practical difficulty exists.'" O'Brien v. Bd. of Zoning Adjustments for City of New Orleans, 15-0169, p. 4 (La. App. 4 Cir. 10/7/15), 177 So.3d 738, 740 (quoting CZO, § 14.6.1).
We acknowledge also that various parts of what we presume to be the administrative record are sprinkled throughout the record before this Court. To the extent that we have limited authority to consider these documents in the scope of an exception of no cause of action, see Maw Enterprises, L.L.C., 14-0090, p. 7, 149 So.3d at 215, it is difficult to discern the administrative procedural history of this case, what was argued by whom, and what evidence was before the Department of Safety and Permits or the BZA. Because Wimsatt failed to allege in her second petition that she is seeking review of the BZA decision, neither that record nor the transcription of any of the proceedings was lodged in the district court or here on appeal. See La. R.S. 33:4727(E)(2)-(4)(providing procedure for lodging BZA record in district court).
In summary, Wimsatt has not alleged that she seeks district court review of the
"Nevertheless, where a plaintiff may be able to remove the grounds of the defendant's peremptory exception so as to properly state a cause of action, he should be afforded an opportunity to amend the petition." Robinson v. Moises, 14-1027, p. 6 (La. App. 4 Cir. 6/10/15), 171 So.3d 1108, 1111 (citing La. C.C.P. art. 934)(other citations omitted). "Indeed, it is mandatory that the trial judge permit an amendment of the pleadings when there is a conceivable possibility that a cause of action may yet be stated by a plaintiff." Cooper v. Pub. Belt R.R., 00-0378, p. 4 (La. App. 4 Cir. 12/20/00), 776 So.2d 639, 641. While we find that the second petition with its current allegations fails to state a cause of action against the City to enjoin enforcement of the administrative judgment, we are not prepared to find as a matter of law that the basis for the objection to the petition cannot be removed by amendment. Therefore, we remand the matter to the trial court to permit Wimsatt to amend her petition to state a cause of action.
Accordingly, for the reasons set forth in this opinion, we reverse the district court's denial of the City's exception of no cause of action, we vacate the remainder of the judgment, and we remand this case to the district court to permit amendment of the petition and for further proceedings consistent with this opinion.
O'Brien, 15-0169, pp. 4-5, 177 So.3d at 740-41 (quoting CZO, § 14.6.4).
(3) The board of adjustment shall not be required to return the original papers acted upon by it, but may return certified or sworn copies thereof or such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
(4) If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct, the cost of which shall be borne by the party who initiated the appeal, and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.
La. R.S. 33:4727(E)(2)-(4).