Sunset Harbour, L.L.C. v. the City of New Orleans

SUNSET HARBOUR, L.L.C. * NO. 2023-CA-0379

VERSUS *
COURT OF APPEAL
THE CITY OF NEW ORLEANS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-07392, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
Judge Rachael D. Johnson
******
(Court composed of Judge Dale N. Atkins, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)

Jonah A. Freedman
JONAH FREEDMAN LAW, LLC
700 Camp Street, Suite 316
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

Shawn Lindsay
Donesia D. Turner
DEPUTY CITY ATTORNEY
1300 Perdido Street
Suite 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
November 29, 2023

RDJ Appellant, Sunset Harbour, LLC (“Sunset”), seeks review of two district
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NEK court judgments: a January 18, 2022 interlocutory district court judgment, denying

its Motion for Leave to Present Additional Evidence into an administrative record;

and, a March 28, 2023 alternative judgment, denying its Petition to Appeal

Administrative Judgment. Finding no error, we affirm the district court’s

respective judgments.

FACTS AND PROCEDURAL HISTORY

The instant appeal arises from ordinance violations assessed against Sunset’s

property located at 2610-12 S. Johnson Street (“the Property”) in New Orleans.

The Property was sold at tax sale to Nebraska Alliance Realty Company

(“NARC”) in 2015. NARC later transferred its tax title interest in the Property, in

“as is” condition, to Sunset on January 25, 2021. The transfer of the tax sale

interest was recorded in the Orleans Parish Office of Conveyances on January 29,

2021.

Prior to the transfer, on December 4, 2020, a Code Enforcement Inspector

for the City of New Orleans inspected the Property and discovered several

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violations of the City’s Minimum Property Maintenance Code (“the Code”), which

led to the City opening Case Number 20-21313-MPM.

Code Enforcement issued a Notice of Hearing, dated May 19, 2021, to

Sunset, as well as other potential owners of the Property, setting a July 1, 2021

administrative Code Enforcement hearing date and detailing the following nine

Code violations present on the Property during the December 4, 2020 inspection:

1. CCNO 26-157; Sanitation

2. CCNO 26-160(a); Weeds and Plant Growth

3. CCNO 26-163; Fences and Walls

4. CCNO 26-172; Gutters and Downspouts

5. CCNO 26-176; Stairways

6. CCNO 26-178; Handrails and Guardrails

7. CCNO 26-179; Windows

8. CCNO 26-179; Door Frames

9. CCNO 26-181; Doors

When the Property was inspected a second time on June 24, 2021, the inspector

determined that all nine violations remained present.

Subsequently, the July 1, 2021 administrative hearing was rescheduled to be

held on August 2, 2021. A Notice of Reset was mailed to Sunset and all potential

owners and affixed on the Property.

On July 7, 2021, Sunset hired Preaux Construction Services, LLC

(“Preaux”) to remediate the Property. Preaux submitted a demolition permit

application to the City on July 20, 2021. The City issued the permit on July 28,

2021. On the same date the demolition permit was issued, the Property was

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inspected a third time and was found in the same condition as the prior two

inspections.

At the August 2, 2021 Code Enforcement hearing, the City’s Representative

recounted the Property’s nine cited Code violations: 1) unsecured doors; 2) cracked

door frames that were not weather tight in the rear; 3) unsecured windows on the

left side; 4) missing handrails and guardrails; 5) deteriorated and hazardous

stairways in disrepair; 6) defective and leaking downspouts and gutters which

drained onto neighboring property; 7) rear fencing and walls missing boards or

pieces; 8) overgrown and obnoxious weeds over 18 inches; and 9) accumulated

trash, debris, and unsanitary conditions in the rear of and underneath the Property.

She also introduced all three inspection reports, as well as corresponding

photographs taken during each inspection, evidencing that all nine Code violations

were present on the Property during each inspection.

Sunset’s counsel testified that Sunset initially encountered difficulties in

finding a contractor who could quickly commence abatement work; nevertheless,

Sunset eventually retained Preaux. Its counsel further testified that Preaux applied

for a building permit to commence work on July 20, 2021; however, because the

City issued the permit eight days later, Sunset was only left with a few days to

abate the alleged violations before the hearing. Furthermore, Sunset presented the

hearing officer with six photos of its abatement efforts, a copy of the demolition

permit, and a copy of the construction contract with Preaux. Sunset requested

additional time to complete the abatement; however, the hearing officer denied the

request.

The hearing officer noted that the scope of the work included in the

construction contract and the permit did not fully encompass abatement of all nine

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Code Enforcement violations. Finding Sunset guilty of all nine violations, the

hearing officer assessed the following fines and costs, totaling $2,475.00; $500 for

violation of CCNO 26-176; $500 for violation of CCNO 26-178; $250 each for

two violations of CCNO 26-179; $500 for violation of CCNO 26-181; a reduced

fine in the amount of $100 each for violations of CCNO 26-157, CCNO 26-160(a),

CCNO 26-163, and CCNO 26-172 that remained on the Property during all three

inspections, but were abated by the hearing date; and a $75 hearing cost.

Thereafter, Sunset furnished security to suspend execution of the

Administrative Judgment and filed a petition to appeal said judgment. Sunset also

moved for leave to present additional evidence into the administrative record,

which the district court denied on January 18, 2022. It filed a supervisory writ

application with this Court, seeking review of the January 18, 2022 district court

judgment, but the writ application was denied. Sunset Harbour, L.L.C. v. The City

of New Orleans, unpub., 22-0073 (La. App. 4 Cir. 2/15/22).

At a March 3, 2023 hearing, the district court denied Sunset’s Petition to

Appeal Administrative Judgment, orally ruling in favor of the City and affirming

the hearing officer’s judgment as follows:

The petitioner, Sunset Harbour, LLC, failed to carry out
its burden of proof to show that the City of New
Orleans’s decision was arbitrary or capricious or that the
city abused its discretion.

Here, the administrative record establishes that the
property was inspected three times and all three
inspection reports note the same nine violations.
Furthermore, the photographs taken on December 4,
2020, show the violations. The hearing officer issued
$100 fines for the abated violations and issued either
$250 or $500 fines for the violations not remedied. Based
on these facts, it does not appear that the administrative
judgment was arbitrary, capricious, or an abuse of
discretion. Furthermore, the Court finds that the

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administrative decision is not in violation of
constitutional provisions.

Based on everything before it, the Court finds that
the evidence furnished a legal and substantial basis for
the city’s decision. Therefore, petitioner’s request is
denied.

The district court rendered a written judgment on March 28, 2023.

This timely appealed followed. Sunset raises two assignments of error: the

district court erred in denying Sunset’s Motion for Leave to Present Additional

Evidence; and the Administrative Court erred in rendering an administrative

judgment against the Property in the amount of $2,475.00.

Denial of Motion for Leave to Present Additional Evidence

Sunset avers that the district court abused its discretion when it declined to

order the administrative record supplemented with the photos of the abatement of

the Property taken post-hearing, which were attached to the affidavit of Sunset’s

contractor, Mitchell Curole. It contends that the district court had the authority to

order the supplemental evidence be admitted into the administrative record if the

evidence is “material” and the mover had “good cause” for failure to present it at

the administrative hearing, under La. Rev. Stat. 49:964(E).1 Sunset avers that it has

good cause because the City caused the delay in abatement by delaying the

issuance of the demolition permit, thereby preventing Sunset from submitting

evidence of full abatement at the administrative hearing.

In its motion, Sunset sought to introduce into the administrative record

affidavits of Nathaniel M. Phillips—an officer of Sunset’s parent company,

1 Louisiana Revised Statute 49:964 was redesignated as La. Rev. Stat. 49:978.1 by Acts 2022,

No. 663, § 1 of the Louisiana Legislature and became effective on August 1, 2022. In
accordance with the redesignation and pursuant to La. Civ. Code art. 6, the statute will hereafter
be cited as La. Rev. Stat. 49:978.1 in this opinion.

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Iberville Capital, L.P.—and Mr. Curole, as well as photographic evidence of the

complete abatement of the Property. Sunset contends that it is asking this Court to:

order evidence into the administrative record that did not
exist at the time of the hearing do [sic] [to] the fault of
the City of New Orleans. Mr. Curole’s affidavit explains
how abatement work was being completed on the day of
the hearing. . . . The photos attached to the affidavit
demonstrate the abatement work that was either in
progress while the hearing was being conducted or
completed soon thereafter. . . . Sunset is not asking the
Court to admit into evidence information that Mitchell
Curole could have testified to.

For the District Court to deny the abatement
completion photos into the administrative record because
Mitchell Curole could have testified defies logic. Mr.
Curole could not have testified to or presented evidence
of what did not yet exist.

Louisiana Revised Statute 49:978.1(E) provides:

If, before the date set for hearing, application is made to
the court for leave to present additional evidence, and it
is shown to the satisfaction of the court that the
additional evidence is material and that there were good
reasons for failure to present it in the proceeding before
the agency, the court may order that the additional
evidence be taken before the agency upon conditions
determined by the court. The agency may modify its
findings and decision by reason of the additional
evidence and shall file that evidence and any
modifications, new findings, or decisions with the
reviewing court.

Sunset’s argument in support of this assignment of error incidentally

establishes why its motion should be denied. Evidence of abatement that occurred

at the time of or shortly after the administrative hearing is irrelevant due to its

untimeliness. The purported evidence is not germane to the actual condition of the

Property at the time of the hearing. Moreover, consideration of such evidence

belies a purpose of setting a hearing date: to establish a deadline for property

owners to become compliant.

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Sunset avers that good cause exists for consideration of the evidence because

the City delayed in issuing its permit. Sunset summarily asserts that the City

delayed in issuing the permit by waiting eight days to issue the same. However,

Sunset’s argument overlooks the City’s required permit review process by

asserting that somehow it is the City’s fault that it conducted the required review

and did not quickly or instantaneously issue the requested permit. No evidence was

presented showing a delay existed or what the normal processing time is for a

demolition permit. Also, at the administrative hearing, Sunset could have presented

Mr. Phillips and Mr. Curole to testify or presented their affidavits attesting to the

setbacks Sunset faced in hiring a contractor or remediating the Property,

respectively.

Lastly, Sunset avers that the district court orally explained at the hearing that

the court was denying Sunset’s motion because it failed to cite any authority in

support of its arguments and that Sunset’s affiants could have testified at the

administrative hearing. Sunset avers that the district court’s reasoning is flawed.

Nevertheless, as Sunset recognizes, a “district court’s oral or written reasons for

judgment form no part of the judgment, and . . . appellate courts review judgments,

not reasons for judgment.” Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-

0586, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (quoting Bellard v. Am. Cent. Ins. Co.,

07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671).

The Wooley Court reasoned that often judgments are upheld on appeal for

reasons differing from those assigned by the district court. Id. “[W]ritten reasons

for judgment are merely an explication of the trial court’s determinations”;

nevertheless, “[t]hey do not alter, amend, or affect the final judgment being

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appealed . . . .” Id. at pp. 77-78, 61 So.3d at 572 (quoting State in the Interest of

Mason, 356 So.2d 530, 532 (La. App. 1st Cir. 1977)).

For the foregoing reasons, we find that the district court did not abuse its

discretion in denying Sunset’s motion for leave. This assignment of error is

without merit.

The Administrative Judgment

In Sunset’s remaining assignment of error, it argues that the hearing officer

erred in rendering an administrative judgment against the Property in the amount

of $2,475.00. Specifically, Sunset avers the judgment is: (1) arbitrary for rendering

a judgment of $400.00 in fines for “abated” violations; (2) not supported by a

preponderance of the evidence; (3) violates the Louisiana Equal Protection Clause

under La. Const. art. I, § 3 for discriminating against small properties in favor of

large, commercial properties; and (4) violates the Excessive Fines Clause under the

Eighth Amendment. Therefore, Sunset avers that the administrative judgment

should be reversed for the above-numbered reasons under La. Rev. Stat.

49:978.1(G).

This Court has previously held that “[t]he proceedings and findings of an

administrative agency are presumed to be legitimate and correct.” Hayes v. City of

New Orleans, 21-0752, p. 7 (La. App. 4 Cir. 8/3/22), 346 So.3d 304, 309 (quoting

Mystery House, LLC v. City of New Orleans, 20-0014, p. 6 (La. App. 4 Cir.

11/25/20), 365 So.3d 95, 99). “[A]n appellate court sitting in review of an

administrative agency reviews the findings and decision of the administrative

agency and not the decision of the district court.” Bourgeois v. La. State Racing

Comm’n, 10-0573, p. 7 (La. App. 4 Cir. 11/12/10), 51 So.3d 851, 856 (quoting

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Smith v. State Dep’t of Health & Hosp., 39,368, p. 4 (La. App. 2 Cir. 3/2/05), 895

So.2d 735, 739).

The scope of judicial review of agency decisions and the exclusive grounds

upon which an administrative agency’s decision may be reversed or modified are

set forth in La. Rev. Stat. 49:978.1 (G):

The court may affirm the decision of the agency or
remand the case for further proceedings. The court may
reverse or modify the decision if substantial rights of the
appellant have been prejudiced because the
administrative findings, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion; or

(6) Not supported and sustainable by a preponderance of
evidence as determined by the reviewing court. In the
application of this rule, the court shall make its own
determination and conclusions of fact by a
preponderance of evidence based upon its own
evaluation of the record reviewed in its entirety upon
judicial review. In the application of this rule, where
the agency has the opportunity to judge the credibility
of witnesses by first-hand observation of demeanor on
the witness stand and the reviewing court does not,
due regard shall be given to the agency’s
determination of credibility issues.

Moreover, “the decisions of the administrative agency are subject to a

rebuttable presumption of validity and should not be reversed by a reviewing court

absent ‘a clear showing that the decision (1) was arbitrary or capricious, (2) was an

abuse of the hearing officer's discretion, or (3) was manifestly erroneous based on

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the evidence in the record on appeal.’ ” St. John the Baptist Par. v. Dutch Bayou

Dev. Co., 19-357, p. 8 (La. App. 5 Cir. 1/29/20), 290 So.3d 292, 298 (quoting

Gebre v. City of New Orleans, 14-0904, 14-0905, p. 7 (La. App. 4 Cir. 10/7/15),

177 So.3d 723, 730). Appellants bear the burden of proof “to demonstrate any

grounds for reversal or modification.” Mystery House, 20-0014, p. 6, 365 So.3d at

99 (citing Reaux v. La. Bd. of Med. Exam’rs, 02-0906, p. 2 (La. App. 4 Cir.

5/21/03), 850 So.2d 723, 726). “Absent such a showing, the reviewing court may

not may not [sic] substitute its own judgment for that of the agency.” St. John the

Baptist Par., 19-357, p. 8, 290 So.3d at 298 (citing Clark v. La. State Racing

Comm’n, 12-1049, pp. 10-11 (La. App. 4 Cir. 12/12/12), 104 So.3d 820, 827).

The evidence presented at the administrative hearing established that the

Property was in violation of the city ordinances referenced in the notice. Because

Preaux was still remediating the Property at the time of the hearing, it is undisputed

that all of the alleged Code violations were not completely abated when the hearing

occurred. Moreover, the record also reflects that all of the Code violations were

present on the Property for all three inspections, although ultimately Sunset

managed to abate four violations just prior to the hearing date. This means that the

Property sat blighted, as a nuisance, and as an eyesore in the community for at least

an eight-month period. Furthermore, this Court has previously upheld an

administrative hearing officer’s imposition of $100 fines for abated violations. See

Hayes, 21-0752, p. 7, 346 So.3d at 309.

Sunset asserts that it faced hardship in retaining a contractor and blames the

City for allegedly delaying the issuance of its demolition permit. However, it failed

to present evidence of any grounds for reversal or modification of the

administrative judgment under La. Rev. Stat. 49:978.1(G), especially considering

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that it had the opportunity to submit proof to the hearing officer in support of these

two claims.

Lastly, regarding Sunset’s claims that the administrative judgment violated

the Equal Protection Clause of the Louisiana Constitution and the Excessive Fines

Clause of the United States Constitution, we find that Sunset is precluded from

raising these arguments. Appellate review is limited to the administrative record.

La. Rev. Stat. 49:978.1(F); Fritzner v. City of New Orleans, 12-1617, p. 4 (La.

App. 4 Cir. 5/22/13), 116 So.3d 945, 947. Considering that Sunset’s constitutional

arguments were not raised before the hearing officer and are not present in the

administrative record, we pretermit a discussion of these arguments.

In light of the foregoing, Sunset did not show that the hearing officer’s

judgment was arbitrary or capricious, nor did Sunset demonstrate that the hearing

officer abused her discretion. This assignment of error is without merit.

DECREE

Finding that the district court did not err in its denial of Sunset’s Motion for

Leave to Present Additional Evidence, nor in its denial of Sunset’s Petition to

Appeal Administrative Judgment, we affirm the district court’s judgments of

January 18, 2022, and March 28, 2023, respectively.

AFFIRMED

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