CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO.

2007-136 c/w 2007-2497 SECTION : (15) DIV. B

THE UPTOWNER, INC. VERSUS CITY OF NEW ORLEANS and BOARD OF ZONING ADJUSTMENTS FOR THE CITY OF NEW ORLEANS

FILED: _____________________

_______________________________ DEPUTY CLERK

MEMORANDUM IN OPPOSITION TO INTERVENOR, DAVID SHERMAN, MOTIN FOR SUMMARY JUDGMENT AND INCORPORATED MOTION TO STRIKE AFFIDAVITS AND EXHIBITS FOR FAILURE TO CONFORM TO THE REQUIREMENTS OF LA. CCP arts. 966(B) AND 967 AND STATEMENT CO CONTESTED ISSUES OF MATERIAL FACT.

MAY IT PLEASE THE COURT:

Intervenor, Michael Sherman (Mr. Sherman) is not entitled to any of the relief requested in his Motion for Summary Judgment (the Motion) in this zoning dispute litigation. Mr. Sherman has failed to provide competent summary judgment evidence to support the first of his four (4) requests and provides no codal, statutory or jurisprudential support for the remaining three (3). The four requests are: (1) That this Court declare that 438 Henry Clay Avenue (the Premises) has lost its non-conforming use designation as a reception hall.1 (2) That this Court strip any permits received by The Uptowner from the City of New Orleans (The City) allowing it to operate as a reception hall.2 (3) That this Court bar any new permits from being issued to any owner, occupant, or lessee of the premises allowing it to function as anything other than residence.3 (4) That this Court require the City Planning Commission Staff to reconsider The Uptowners application for a zoning change for the premises from RD-4 to B-1A and requiring its staff to rewrite its report to reflect that the premises does not enjoy a legal non1

This request is not supported by any competent summary judgment evidence as discussed infra in The Uptowner, Inc. (The Uptowner)s incorporated Motion to Strike (The Strike Request).
2

In the absence of any competent summary judgment evidence supporting the assertion that the premises has lost its non-conforming use status as a reception hall there is no basis for stripping The Uptowners permits.
3

Not surprisingly, Mr. Sherman offers no codal, statutory or jurisprudential support for this request which would improperly invade the legislative function by irrevocably preventing the City of New Orleans from exercising its legislative prerogatives irrespective of the circumstances.

conforming use as a reception hall.4 In order to fully understand the basis of The Uptowners opposition some background is in order.5

BACKGROUND

On or about March 15, 2006, Lucy, purchased the premises from Ms. Johnson. Lucy also purchased all Ten Thousand (10,000) shares of The Uptowner Inc.s stock.6 On May 3, 2006, The City issued a temporary occupational license to The Uptowner, Inc., as a full service restaurant (table service).7 On July 6, September 5 and September 29, 2006, The City issued temporary occupational licenses to The Uptowner indicating that the business was not operating pending approval by safety and permits.8 On December 20, 2006, The City issued The Uptowner an Occupational License as reception hall rental or leasing.9 This was in addition to a temporary occupational license running from November 20, 2006 to January 19, 2007, allowing business as a full service restaurant restaurant.10 On March 15, 2007, The City issued an occupational license to The Uptowner as a reception hall and reissued the aforementioned license on February 14, 2008.11 The Uptowner has regularly and continuously done business since its acquisition by Lucy. This regularity and continuity of business is reflected by the Entergy and telephone bills and business hour photographs attached to Mr. Sonniers Affidavit.12 This is also reflected by the determination of Conversely, the Affidavits submitted by Mr. Sherman are contradictory to each
4

The absence of competent summary judgment evidence to support Mr. Shermans first request precludes his fourth.
5

The background information is extracted from the Affidavit of Greg Sonnier (Mr. Sonnier), a principal in Lucy, LLC (Lucy) which purchased the premises and 100% of the stock in the Uptowner, Inc. from Kathy Tisdale Johnson.
6

In order to avoid business interruption engendered by the cancellation of non-transferable licenses (e.g., liquor licenses) Lucy acquired one hundred percent (100%) of The Uptowner, Inc.s stock avoiding any transfer issues and insuring continuous operation. Affidavit of Greg Sonnier (AS) para. VI
7

Id. para. VIII. Id. Id. Id. Id. Id. paras. X - XII

10 11

12

other and Mr. Shermans assertion in his Motion that for many years, the first floor of the building at 438 Henry Clay Avenue, known as The Uptowner, operated as a reception hall with a non-conforming use designation.13 Conversely, the Affidavits submitted in support of the Motion state, inter alia:14 (1) Mark Gauchets Affidavit He states throughout his fourteen (14) years living in the neighborhood, The Uptowner operated infrequently and intermittently as a reception hall. This would be from 1994 forward based upon the August 11, 2008 execution date of his Affidavit;15 (2) Claire Morrisons Affidavit She states she has lived in the neighborhood for thirty-eight (38) years. She further states that for the last ten (10) years The Uptowner has not operated regularly and continuously;16 (3) Peggy Sapirs Affidavit Ms. Schaeffer states that prior to 1995, The Uptowner was an active reception hall.17 (4) Leslie A. Davis Affidavit Ms. Davis Affidavit suggests the same timeline for regularly infrequent operations of The Uptowner as Ms. Sapirs. However, she defines an active reception hall as one which primarily hosted wedding receptions on weekends;18 (5) Cecilia Sogins Affidavit Ms. Sogin states that in the past fourteen (14) years, The Uptowner has never operated with regular hours;19 (6) Kent Blackells Affidavit - Mr. Blackell states that in the fifteen (15) years, he has lived in The Uptowners neighborhood: The facility was only opened for business when a reception was held which varied from no receptions in some months to approximately one (1) or two (2) in busier months.20 In considering The Uptowners operation(s), it is also important to note the following from Edward J. Horan (Mr. Horan), the Zoning Administrator for the Citys Department of Safety and Permits. He has stated: Based on review of the documentation submitted by the owner, there is sufficient evidence to indicate that 438 Henry Clay Avenue has maintained

13

Mr. Shermans Motion p. 1.

14

The Uptowner is contemporaneously moving to strike Mr. Shermans Affidavits for failure to comply with LA. CCP arts. 966 (B) & 967. The discussion which appears immediately infra is provided solely in the event that the Motion to Strike should be denied.
15

Motion Exhibit D Affidavit of Mark Gauchet.

16

Motion Exhibit D Affidavit of Claire Morrison, para. 6. Ms. Morrisons Affidavit has The Uptowner regularly and continuously for three (3) years longer than Mr. Gauchets.
17

Motion Exhibit D Affidavit of Peggy Sapir, para. 4. Ms. Sapirs Affidavit contradicts both Mr. Gauchets and Ms. Morrisons. Mr. Gauchet stating that for the entire fourteen (14) years he has lived at his present address, The Uptowner operated infrequently and intermittently and Ms. Morrison stating that The Uptowner operated regularly and continuously up to 1998.
18

Motion Exhibit D Affidavit of Leslie A. Davis, para. 5. Motion Exhibit D Affidavit of Cecilia Sogin, para. 3.

19

20

Motion Exhibit D Affidavit of Kent Blackell, para. 3. This directly contradicts Peggy Sapirs Affidavit at paragraph 3 where she states: Prior to 1995, the facility was an active reception hall.

its non-conforming status as a reception hall/catering facility.21 Additionally, in responding to Mr. Sonniers question, What is the written difference between a Full SVC Restaurant Table Service and reception hall according to the Zoning Administration of the Department of Safety and Permits? Mr. Horan responded: 8. The nature of the use is the difference. A reception hall has events either everyday or intermittently booked in advance and not open for walk-in dining. A restaurant is open to the public during certain hours a day.22 It is against this background that Mr. Shermans Motion must be considered.

PROCEDURAL CONSIDERATIONS Summary Judgment shall only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the Affidavits, if any, show that there is no genuine issue as to material facts and that the mover is entitled to judgment as a matter of law. The burden of proof remains with the mover.23 A fact is deemed to be material if it is essential to the plaintiffs cause of action under the applicable theory of recovery and without which he/it could not succeed. Typically, material facts are those that potentially insure a preclude recovery, affect the litigants ultimate success or determine the outcome of a legal dispute.24 In determining whether an issue of material fact is genuine this Court may not consider the merits, make credibility determinations or evaluate testimony or weigh evidence.25 Unsworn and unverified documents not attached to an affidavit are inadmissible as evidence in a motion for summary judgment. Documents which are not certified or attached to an affidavit are also of insufficient evidentiary quality to be given weight in determining whether they are remaining genuine issues of material fact.26 Not only are unsworn and unverified documents, not attached to affidavits
21

Mr. Horans e-mail of August 16, 2007. Mr. Sonniers Affidavit, para. XV. Statements demonstrating that they result from an investigation are sufficient to form competent summary judgment evidence. Longo v. BellSouth Telecomms., Inc., 885 So. 2d 1270 (La. App 4th Cir, 2004)
22

Id. para XIV (emphasis added). Collins vs. State Farm Ins., Co., et al, 2008 La. App. LEXIS 1402(2008). Prado vs. Sloman Neptune Schiffahrts, A.G., 611 So. 2d 691 (La. App. 4th Cr. 1992). Anya vs. Legg Mason Wood Walker, Inc., 985 So. 2d 281 (La. App. 4th Cr. 2008).

23

24

25

26

Lilly vs. Allied Health Care, 2008 La. App. LEXIS 880 (1st Cr. 2008); Sanders vs. J. Ray McDermott, Inc., 867 So. 2d 771 (La. 1st Cr. 2003).

inadmissible on summary judgment, affidavits which are not made on personal knowledge are likewise inadmissible.27 The purpose of the personal knowledge requirement is to limit an affidavit to facts which the affiant saw, heard or received with his own senses.28 Portions of affidavits not based on the personal knowledge of the affiant should not be considered in deciding a motion for summary judgment.29 None of the Affidavits contained in Exhibit D to Mr. Shermans Motion state they are based on personal knowledge. It is also clear that affidavits containing conclusory facts which are devoid of specific facts will not be sufficient for summary judgment purposes. Colwart vs. Encompass Indem. Co., 961 So. 2d 527 (La. App. 5th Cr. 2007). A fair reading of the five (5) Affidavits submitted in support of Mr. Shermans Motion demonstrates that they should not be considered as competent summary judgment evidence. To the extent that it may be gleaned that portions or based on personal knowledge because of alleged observations the statements contained in the Affidavits are insufficient to address the question at issue, and to the extent not inconsistent almost wholly conclusory.30 The Affidavits fail to: (1) Provide any meaningful basis for determining the extent to which each affiant

observed The Uptowner; (2) Failed to provide any meaningful basis for the Court to determine what years

each Affidavit refers to with respect to a given level of business activity; (3) Failed to provide any meaningful definition, from the affiants perspective, of

the phrase open for business; (4) Contain conclusory statements like has not operated regularly or

continuously.31 Has operated infrequently and intermittently as a reception hall32 Each of the Affidavits submitted in support of Mr. Shermans Motion should be

27

La. CCP art. 967; Hibernia Natl vs. Rivera, 2008 La. App. LEXIS 1274 (5 th Cr. 2008). Id.

28

29

Adalgo vs. General Fire & Casualty Co., 254 So. 2d 493 (La. App. 3rd Cr. 1971) cited with approval in Hibernia Natl Bank, supra.
30

They are also irrelevant in light of 13.6.2 of the New Orleans Comprehensive Zoning Ordinance which, as interpretive legislation is applied retroactively.
31

Claire Morrisons Affidavit. Mark Gauchets Affidavit.

32

stricken as, to the extent they purport to be based on personal knowledge, they are almost wholly conclusory and fail to provide the Court with any meaningful basis for evaluating the time periods in which claimed observations were made and the extent to which The Uptowner was observed on a regular basis. Additionally, Exhibits A & B, unsworn, uncertified copies of newspaper articles not attached to any Affidavit are incompetent evidence for summary judgment purposes and must be disregarded. These objections should be taken as The Uptowners Incorporated Motion to Strike Mr. Shermans Exhibits.

SUBSTANTIVE CONSIDERATIONS

As noted by Judge Byrnes in Weisler v. Board of Zoning Adjustments, 745 So. 2d 1259 (La. App. 4th Cr. 1999): What constitutes sufficient uses to establish non-conforming status may vary with the facts of each case. We can see an argument that where a particular property is dedicated to a non-conforming use it may require a lower level of daily activity to establish usage. For example, had the Weislers abandoned their home in whole and in part as a residence and dedicated in whole and in part to commercial receptions with appropriate permanent and commercial signage designating as such with a stronger argument that the commercial use of the property continued in between receptions just as we continue to think of the property operators as a bank as still being used as a bank even when it closes at night or on weekends and holidays.33 Further: In other words, had the Wieslers shown that their residence was a dedicated, designated commercial reception hall, a better argument could made regarding the consistency of use.34 Although Mr. Sherman cites Wiesler, he fails to cite to the statements above and also ignores the holding that decisions of the Board of Zoning Adjustments enjoy a presumption of validity and a reviewing court should not merely substitute its own judgment for that of the Board, unless there is a clear showing that the Board was arbitrary and capricious or abused its discretion when a decision is not manifestly erroneous in view of substantial evidence in the record.35
33

Wiesler p. 1263. Id. pp. 1263-1264.

34

35

Wiesler p. 1264. Nonetheless, the Motion provides the Court with no information concerning the BZA action or the standard to be applied by the Court in reaching a determination. The documents appended to Mr. Sonniers Affidavit clearly demonstrate that the Zoning Administrator for the Department of Safety and Permits found there is sufficient evidence to indicate that 438 Henry Clay Ave. has maintained its non-conforming status as a reception hall/catering facility.

13.6.2 of the New Orleans Comprehensive Zoning Ordinance presently provides: Any business establishment operating as a designated reception facility shall not be considered casual, temporary, or illegal due to the nature of the business operating intermittently for scheduled events with food and beverage service at the request of clients. These private events with food and beverage service, scheduled by non-owners and/or operators, must be held a minimum of fifteen (15) occasions a year to uphold a legal operating status as a reception facility. Exceptions to this operational standard are appealable to the Board of Zoning Adjustments.36 Although Mr. Sherman baldly asserts that 13.6.2 is not applicable to the present appeal, he ignores the provision of La. CC art. 6 which provides in pertinent part: Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.37 13.6.2 clearly interprets the meaning of casual, temporary or illegal in the context of reception facilities. It is interpretive and nothing but interpretive and should and must be given retroactive effect. Similarly, La. R.S. 33:4882 renders the bulk of the Affidavits contained in Exhibit D to the Motion irrelevant. It provides in pertinent part: A. Notwithstanding any provision of law or municipal or parish ordinance or resolution to the contrary, the governing authority of any municipality or parish and any agency of any such municipality or parish shall not allow and shall not cause any building or land to lose its nonconforming use status because, during all or part of the period of August 29, 2005, through August 28, 2007, as a result of damage caused by Hurricane Katrina or Hurricane Rita, it is temporarily vacant or operations normally carried on in such building or on such land have been temporarily discontinued.

ARGUMENT Notwithstanding the 1997 Amendment to La. CCP art. 966 by enactment of Article 966 (C) (2), the initial burden of proof remains with the mover (Mr. Sherman) to demonstrate that there is no genuine issue of material of fact.38 This he has plainly failed to do. He has provided the Court with no competent summary judgment evidence from a factual standpoint nor supported his legal position: (1) None of the Affidavits supporting the Motion state they are made on personal knowledge;

36

Ordinance 22,789 1 (part), Adopted 9/6/07. Compliance is therefore based on a little over three recsptions per month.
37

Emphasis added. M.J. Farms Ltd. vs. Exxon Mobile Corp., 2008 La. LEXIS 1527 (La. 2008). Jones vs. Estate of Santiago, 877 So. 2d 1002 (La. 2004).

38

(2)

To the extent that any personal may be gleaned from the Affidavit that knowledge exists primarily in the form of conclusory statements; To the extent the statements contained in the Affidavits are not otherwise incompetent, they provide the Court with no meaningful way to gage their utility, especially in light of the addition of 13.6.2 to the New Orleans Comprehensive Zoning Ordinance; The Affidavits are irrelevant with respect to the period from August 29, 2005 to August 28, 2007 as a result of the passage of La. R.S. 33:3882;

(3)

(4)

(5)

The Affidavits of Ms. Johnson and Mr. Sonnier are more than sufficient to demonstrate the existence of a non-conforming use especially in light of their attachments.

However, even assuming, arguendo that the affidavits submitted in support of the motion were competent summary judgment evidence (and they are not), Mr. Sonniers affidavit and attachments, when considered in pari material with its attachments, including the conclusion of Edward Horan of the City that the Uptowner maintained its non conforming use, is more than sufficient to demonstrate the existence of genuine issues of material fact, as defined by Prado vs. Sloman Neptune Schiffahrts, A.G., 611 So. 2d 691 (La. App. 4th Cr. 1992). And Anya vs. Legg Mason Wood Walker, Inc., 985 So. 2d 281 (La. App. 4th Cr. 2008) to be tried.39 Quite simply, The Uptowners opposition (supported by Mr. Sonniers affidavit demonstrates that: (1) The City determined that the Uptowner has maintained its non-conforming use;40 (2) The Uptowner has operated in conformity with 13.6.2 of the New Orleans Comprehensive Zoning Ordinance since its acquisition by Lucy and subsequent to August 28, 200741 (3) That the City has continuously licensed The Uptowner as a reception hallsince its acquisition by Lucy.42 Equally importantly, Mr. Sherman fails to inform the Court of the BZAs decision, if any, in this matter in order to demonstrate that: (1) He has exhausted his administrative remedies and (2) The BZAs determination and therefore the applicable standard of review and, why the BZA determination was manifestly erroneous. In that regard, Mr. Sherman has not provided the record of any BZA determination to this Court for its review.
39

This is especially true in light of: (1) The retroactive effect of 13.6.2 of the New Orleans Comprehensive Zoning Ordinance and (2) The passage of La. R.S. 33:4882. The affidavits in their entirety clearly fail to negate the minimum requirement that a reception hall hold receptions 0.0410 of a year to keep a nonconforming use (15 receptions per each 365 days). However, even without consideration of 13.6.2, the motion fails to negate the absence of genuine issues of material fact.
40

Mr. Sonniers affidavit para. XV Id. para XVI Id.

41

42

INCORPORATED MOTION TO STRIKE To the extent not made clear by the discussion of the newspaper articles and Affidavits submitted in support of Mr. Shermans Motion for Summary Judgment, The Uptowner specifically request that Court strike the same from consideration in conjunction with the Motion for Summary Judgment as they are incompetent as summary judgment evidence for the reasons expressed above.

INCORPORATED STATEMENT OF CONTESTED ISSUES AND MATERIAL FACT

PURSUANT TO Uniform District Court Rule 9.103, The Uptowner, Inc., submits the following list of contested issues of material fact in conjunction with its opposition to Michael Shermans Motion for Summary Judgment: (1) Kathy Johnson purchased the property bearing municipal address 438 Henry Clay Avenue in New Orleans, Louisiana (the premises) on September 25, 1996: (2) In furtherance of her intent to operate the premises as a reception hall, through The Uptowner, Inc., she acquired all 10,000 shares of the common non-capital stock of The Uptowner, Inc., a corporation formed for the purpose of operating The Uptowner as a reception hall; (3) Kathy Johnson obtained all necessary occupational and other licenses required by The City of New Orleans (The City) as a reception/banquet hall and said licenses were continuously renewed during the period of August, 1997 to March 2006 without challenge or opposition; (4) The Uptowner, Inc., regularly and continuously generated substantial revenues as a reception/banquet hall and during 2005, the year of Hurricane Katrina, The Uptowner, Inc., had gross receipts/sales of One Hundred Twenty-Two Thousand Seven Hundred Eighty-One Dollars ($122,781.00); (5) The Uptowner maintained regular business hours from August, 1997 through March, 2006; (6) The Uptowners business was not intermittent during the period August, 1997 through March, 2006;

(7)

Greg and Mary Sonnier acquired The Uptowner by acquiring the premises and all of the stock of The Uptowner, Inc., from Kathy Tisdale Johnson in March 2006;

(8)

The Uptowner has operated as a reception/banquet hall subsequent to the acquisition by Lucy, LLC;

(9)

The Uptowner has maintained occupational licenses with The City of New Orleans since its acquisition by Lucy, LLC;

(10)

The Uptowner has maintained alcoholic beverage permits through the City of New Orleans subsequent to its acquisition by Lucy, LLC;

(11)

The Uptowner was exempt from potential loss of its non-conforming use status from August 29, 2005 through August 28, 2007 pursuant to La. R.S. 33:4882;

(12)

The Uptowner has operated in conformity with 13.6.2 of the New Orleans Comprehensive Zoning Ordinance subsequent to its August 28, 2007;

(13)

Even without reference to 13.6.2 of the New Orleans Comprehensive Zoning Ordinance, The Uptowner has operated in such a fashion as to maintain its non-conforming use pursuant to New Orleans Comprehensive Zoning Ordinance.

CONCLUSION Based on all of the above, it is clear that Mr. Shermans Motion for Summary Judgment is without factual or legal basis and accordingly, should and must be denied. Respectfully submitted, KILLEEN & STERN, P.C.

____ ________________ Robert C. Stern (#12454) 400 Poydras Street, Suite 1710 New Orleans, Louisiana 70130 Telephone: 504/525-8111 Facsimile: 504/680-6080 Attorneys for The Uptowner, Inc.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Motion has been served on all counsel for all parties to this proceeding, by via facsimile, e-mail and depositing same in the United States mail, postage pre-paid, properly addressed on this 14th day of November, 2008. _______________________________ ROBERT C. STERN

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