1st Circuit Court of Appeal affirms majority of decision on zoning violation

By Sandra Lane | Jul 17, 2018

Peremptory exception is denied, unfair trade practice is reversed

BATON ROUGE – The Louisiana Court of Appeal, 1st Circuit, on July 10, affirmed in part, and denied and reversed in part a judgment handed down by the 23rd Judicial District Court, Ascension Parish, concerning a lawsuit filed regarding a zoning violation in Gonzales, Louisiana.

As detailed in the opinion, plaintiffs Chris and Amy Markerson filed suit against defendants Composite Architectural Design Systems LLC, 2Long LLC, the City of Gonzales and Barney Arceneaux.

According to the filing, the Markersons purchased a home in 2014 next to a lot that contained vacant buildings zoned for a limited business district. A few months later, 2Long purchased the lot next door and leased the buildings to CAD, an aluminum composite material fabricator.

Subsequently, the Markersons alleged that CAD operated its business day and night, using a rotary saw to cut sheets of metal, which produced an extremely loud noise. The opinion stated that they also alleged that bright lights from trucks at CAD' s business shone directly into their bedroom window through the night.  As a result, the Markersons filed complaints with the city, but they claim little was done to remedy the situation.

On June 8, 2015, as explained in the opinion, the Markersons filed a petition for injunction and damages, or, in the alternative, for a writ of mandamus. They also petitioned the trial court to enjoin 2Long and CAD from further conducting its fabrication business at the disputed property and to award damages for nuisance. In the alternative, the Markersons petitioned for a writ of mandamus against the city and its mayor to enforce its zoning ordinances with respect to the disputed property.

The opinion also stated that on Oct. 5, 2015, the Markersons filed a supplemental and amending petition for damages against 2Long and CAD, in which they claimed both parties had violated the Louisiana Unfair Trade Practices and Consumer Protection Law.  The Markersons claimed that 2Long knowingly purchased a B-1 zoned property with the intention of leasing the property to CAD, and knew or should have known that CAD’s business operations violated the zoning ordinances.

After a bench trial, the trial court signed a judgment on May 10, 2017, finding 2Long and CAD liable in solido to the Markersons for nuisance violations, violations of the trial court' s injunction order, and pursuant to Louisiana’s Unfair Trade Practices Act (LUTPA), Chris and Amy Markerson were each awarded $20,000 in damages for the nuisance violations and violation of the injunction, with interest and costs. Pursuant to LUTPA, the trial court awarded to Chris Markerson $1,049.99 in costs for surveillance fees and also awarded reasonable attorney' s fees to the Markersons, which were to be determined by a subsequent show cause hearing. Both 2Long and CAD have appealed to a higher court.

As stated in the appeal court decision, in ruling on 2Long and CAD’s appeal, Judge Mitchell Theriot said, “The peremptory exception of prescription filed before this court by the appellant 2Long, is denied. The judgment of the 23rd Judicial District Court, with respect to the Louisiana Unfair Trade Practices Act claim, is reversed. In all other respects, the judgment is affirmed. Costs of this appeal shall be assessed equally between the appellants, Composite Architectural Design Systems, LLC and 2Long, LLC, and the appellees, Chris and Amy Markerson. Peremptory exception denied, judgment affirmed in part, and reversed in part.”

Judge Page McClendon concurred with Theriot’s ruling.

However, Judge Jewel Welch dissented in part. The opinion quoted her as saying, “I agree with the majority opinion except with respect to the issue of solidary liability. Based on my review of the record, I find that the trial court manifestly erred in holding 2Long and CAD solidarily liable to the Markersons. The evidence in the record does not support a finding that 2Long conspired with CAD to create a nuisance. Therefore, I would reverse that portion of the judgment of the trial court and remand for the allocation of fault, if any of 2Long pursuant to La. C.C. art. 2323. Thus, I respectfully dissent in part.”

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