In Re: Board of Adjustments Decision BOA Case No. 2022-2824 BOA Chanse Mortenson

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0213

kl N RE: BOARD OF ADJUSTMENTS DECISION BOA CASE NO.
2022- 2824 BOA CHANSE MORTENSON

DATE OFJUDGMENT;
NOV 0 9 2023

APPEAL FROM THE TWENTY- SECOND JUDICIAL DISTRICT COURT,
PARISH OF ST. TAMMANY, STATE OF LOUISIANA
NUMBER 2022- 12443, DIVISION C

HONORABLE RICHARD A. SWARTZ, JUDGE

Anthony S. Maska Counsel for Applicant -Appellant
Covington, Louisiana Chanse Mortenson

Warren L. Montgomery Counsel for Respondent -Appellee
District Attorney St. Tammany Parish Government
Alex L.M. Ducros
Assistant District Attorney
Mandeville, Louisiana

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

Disposition: AFFIRMED.

CHUTZ, J.

Applicant -appellant, Chanse Mortenson, appeals the district court' s

judgment, upholding the decision of the St. Tammany Parish Board of Adjustment

BOA), which upheld the denial of a short term rental permit ( STR permit) by the

St. Tammany Parish Planning and Development Department (the Department). We

affirm.

FACTS AND PROCEDURAL BACKGROUND

The salient facts presented to the BOA were set forth by the district court in

its written reasons for judgment, which state:

The evidence established that on February 16, 2022, ...
Mortenson applied to [ the Department] for a permit to operate a short
term rental at his property located [ in] ... Covington, Louisiana ...
known as the Castle]....

The record also established that ... David Lambert and ...
Dolores Falkner reside together in a home located approximately 150
yards from the Castle and share a portion of the driveway with
Mortenson' s] property. The evidence presented to the BOA included
copies of six formal complaints by [ Lambert and/ or Faulkner] alleging
that [ Mortenson] has previously engaged in short term rentals of the
Castle which resulted in the creation of a public nuisance. The
evidence also included photos sent by [ Lambert and Faulkner], as well
as copies of social media posts and advertisements regarding the
rental of the Castle.

On March 18, 2022, the Department denied a STR permit to Mortenson

based in part on the formal complaints by Lambert and Faulkner.' Mortenson

timely appealed the denial to the BOA. At a public meeting held on May 3, 2022,

the BOA denied Mortenson' s appeal and upheld the Department' s denial of the

STR permit. Mortenson subsequently filed a petition for judicial review in district

court, averring that the BOA' s decision to uphold the Department' s denial of his

application of a STR permit was arbitrary and capricious.

Other stated deficiencies precluding issuance of the STR permit set forth in the Department' s
denial were subsequently cured by Mortenson.

2

A return from the BOA was filed into the record. On September 13, 2022,

the district court held a hearing on the merits of Mortenson' s petition. A motion to

supplement, filed by Mortenson on September 13, 2022, was taken up before the

hearing on the merits. The district court took the matter under advisement and on

October 10, 2022, issued a judgment, which granted the motion to supplement but

denied Mortenson relief on his petition for judicial review. Mortenson appealed to

this court.

DISCUSSION

The district court may reverse or confirm, wholly or in part, or may modify

the decision brought up for review. La. R.S. 33: 4780.47(E). On appellate review of

the district court' s judgment, no deference is owed by the court of appeal to the

factual findings or legal conclusions of the district court, just as no deference is

owed by the Louisiana Supreme Court to the factual findings or legal conclusions

of the court of appeal. Thus, our review is of the BOA' s findings and decision, not

of the decision of the district court. The jurisprudence indicates that the decisions

of the BOA are subject to judicial review only as to whether they are arbitrary,

capricious or an abuse of discretion. See New Cingular Wireless, PCS, LLC v.

City -Par, of E. Baton Rouge, 2021- 0292 ( La. App. 1st Cir. 12130121), 340 So. 3d

1037, 1042- 43. An action is " arbitrary and capricious" when it is a willful and

unreasoning action, absent consideration and in disregard of the facts and

circumstances of the case. New Cingular Wireless, PCS, LLC, 340 So. 3d at 1045.

Mortenson maintains that because the Department issued an approval letter

on February 16, 2022, allowing him to apply for an occupational license after

having already received several formal complaints from Lambert and Faulkner, the

Department was on notice of his neighbors' complaints.2 He also points out that in

z It was undisputed that the six formal complaints Lambert and Faulkner had made were between
July 17, 2020 and March 20, 2022.

3

conjunction with his operation of the Castle as a short term rental before February

16, 2022, he had not received any misdemeanor citations for having created a

nuisance.3 Thus, Mortenson contends that the denial of his STR permit application

was arbitrary and capricious.

St. Tammany Parish Ordinance No. 22- 591 sets forth the application

requirements and permit approval provisions. Subsection ( a) expressly states, " The

requirements for the [ STR] permit herein provided are requirements separate and

apart from and in addition to the requirements for obtaining an occupational

license to operate a business." Additionally, Subsection ( c) provides in relevant

part:

Where the [ STR] permit application is approved, the
Department] will issue to the operator at the address provided in the
application a permit approval notice that includes a [ STR] permit

number, an expiration date for the [ STR] permit, and the maximum
number of guests allowed in the short term rental, as determined by
the fire marshal and the [ Department].

Under the applicable St. Tammany STR permitting provisions, the Department' s

approval letter allowing Mortenson to apply for an occupational license does not

carry the same legal efficacy as the Department' s approval of a STR permit.

Therefore, the BOA' s decision to uphold the denial of Mortenson' s application for

a STR permit was not arbitrary and capricious on this basis.

Mortenson next asserts that the BOA erred in its interpretation of the

language set forth in St. Tammany Parish Ordinance No. 22- 592, entitled " Permit

denial," which formed the basis for the Department' s denial of his STR permit

application.

St. Tammany Parish Ordinance No. 22- 592( a)( 5) states:

3 See St. Tammany Parish Ordinance No. 26- 1 (" The purpose of these [ nuisance] articles is to
define and prohibit conduct that constitutes a ` nuisance.' Conduct that is defined as a nuisance is
expressly prohibited and shall constitute a misdemeanor punishable according to the penalties
and provisions set forth in [ S] ection 26- 9, which shall apply to all nuisances, unless a separate
penalty is otherwise provided.").

M

The [ Department] may deny issuance of a [ STR] permit if it
finds ...

That the applicant has previously conducted the type of short
term rental being applied for which results in the creation of a public
or private nuisance, based at least in part on several formal complaints
by guests or neighbors of the short term rental that are received by the
Department] .

Mortenson acknowledges that he has rented out the Castle on a short-term

basis prior to applying for the STR permit on February 16, 2022, and that Lambert

and Faulkner have levied several formal complaints against him. But he urges that

several formal complaints by .., neighbors" cannot and should not be interpreted

to mean that two individuals living in one home next to his premises are

neighbors" as contemplated by the ordinance. Rather, Mortenson suggests the

plain language shows neighbors is plural and, therefore, requires complaints by the

owners of more than one property. We find the BOA' s interpretation of

neighbors" as meaning two individuals who own the single property adjacent to

the applicant' s premises is reasonable. See La. R.S. 1: 7 (" Words used in the

singular number include the plural and the plural includes the singular."). The

BOA' s decision to uphold the Department' s denial of a STR permit to Mortenson

was with due consideration of the facts and circumstances of the case and,

therefore, was not arbitrary and capricious on this basis.'

a We find disingenuous and without merit Mortenson' s assertion that the Department failed to
distinguish which of the formal complaints by Lambert and Faulkner were as a result of his short
term rental of his premises rather than as a result of his personal use. In addition to the written
formal complaints, which included social media posts and advertisements of the Castle,
Faulkner' s statements before the BOA provide a basis for finding that at least some of the formal
complaints were based on short term rental occupants. See St. Tammany Parish Ordinance No.
26- 1 ("[ C] onduct that is a ` nuisance' is hereby defined as any unlawful act or omission, or
suffering or permitting any condition or thing to be or exist, which act, omission, condition or
thing ... ( 4) [ e] ssentially interferes with the right of privacy within [ one' s] home or unreasonably
interferes with the use of [one' s] residential property, including sounds and noises ...; or ( 5)
a] ctually causes, or imminently threatens to cause, material and substantial disruption within the
community or is an invasion of the rights of others."). Further, Mortenson admitted that when
asked by an individual about having a party at the Castle, he inquired whether he was invited and
worked arrangements to ensure the premises were cleaned up. Mortenson also stated that once he
advised the individual, " we could sure use some donations for our fundraiser," the individual
made a donation.

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In this appeal, Mortenson also complains that the district court erred in

failing to allow him to present additional evidence at the hearing. The gist of his

complaint is that if the district court had permitted additional evidence, it would

have learned of the existence of thirteen witness statements favorable to his

application for a STR permit and a meeting he had with the Department' s

representative.

According to La. R. S. 33: 4780. 47( D), " If, upon the hearing, it shall appear

to the court that testimony is necessary for the proper disposition of the matter, the

court may take additional evidence." The use of the word " may" establishes that

the district court' s determination whether to take additional evidence is

discretionary. See La. R.S. 1: 3 ("[ T] he word ` may' is permissive."). See also e.

Jenkins v. Jenkins, 2023- 0087 ( La. App. 1st Cir. 612123), 370 So. 3d 61, 74- 75 ( the

use of the word " may" in a statute establishes that the decision to be made by the

court is discretionary, not mandatory). For an abuse of discretion to occur under

La. R. S. 33: 4780. 47( D), the excluded evidence must have been necessary for the

district court' s proper disposition. Because we have concluded that the record

sufficiently supports the district court' s affirmance of the BOA' S decision,

additional evidence was not necessary for a proper disposition. Therefore, there

was no abuse of discretion.

Additionally, while Mortenson represents that an in -chambers status

conference resulted in the district court limiting its review to one that was appellate

in nature, the district court admitted the thirteen witness statements into the record

pursuant to Mortenson' s motion to supplement. These documents were a part of

the record before the district court and are included in the record before us.

Importantly, at no time during the hearing did Mortenson attempt to introduce or

proffer the testimonial evidence that he complains was excluded by the district

court.

When the court rules against the admissibility of any evidence, it shall either

permit the party offering such evidence to make a complete record thereof, or

permit the party to make a statement setting forth the nature of the evidence. La.

C. C. P. art. 1636( A). However, the evidence excluded by the district court must be

available for appellate review. Without a proffer, appellate courts have no way to

ascertain the nature of the excluded testimony. Error may not be predicated upon a

ruling that excludes evidence unless a substantial right of a party is affected and

the substance of the evidence was made known to the court by counsel. See La.

C. E. art. 103A( 2); Salvador Valencia, LLC v. Robertson Dev., L.L.C., 2022- 0489

La. App. 1st Cir. 12122122), 360 So. 3d 555, 561. In those instances, it is

incumbent upon the party who contends his evidence was improperly excluded to

make a proffer, and if he fails to do so, he cannot contend that the exclusion of

such evidence was erroneous. Lonesome Dev., LLC v. Town of Abita Springs,

2021- 1463 ( La. App. 1st Cir. 6129122), 343 So. 3d 831, 844, writ denied, 2022-

01158 ( La. 1111122), 349 So. 3d 3. Mortenson' s failure to proffer the testimonial

evidence he contends was necessary to a proper disposition of his petition for

judicial review provides an alternate basis to reject his contention. Thus,

Mortenson has failed to establish the district court erred in upholding the BOA' s

determination.

Mortenson also claims he was denied due process since it is undisputed that

the entire record before the Department was not transmitted to the BOA in

conjunction with his appeal. According to La. R.S. 33: 4780.46( B)( 2)( a), providing

for appeals from department administrative officers' decisions to the BOA

pursuant to the zoning regulations for parishes, " The officer from whom the appeal

7

is taken shall forthwith transmit to the [ BOA] all the papers constituting the record

upon which the action appealed from was taken." Pointing to the thirteen witness

statements submitted to the Department, which undisputedly were not part of the

record provided to the BOA, Mortenson suggests that without the missing witness

statements and " what other documentation might have come to the [ Department],"

the BOA' s decision to uphold the Department' s denial of the STR permit was not

only a due process violation but resulted in an improper disposition.

Applying the statutory language to the matter before us establishes that " all

the papers constituting the record," i. e., those papers supporting the Department' s

denial of a STR permit to Mortenson, were the extent of what the Department was

required to transmit. We have already concluded that the documentation submitted

to the BOA amply supports the Department' s decision to deny Mortenson the STR

permit. Thus, the Department has complied with its duty. It is also noteworthy that

nothing in St. Tammany Parish Ordinance No. 22- 592( a)( 5) requires the consent of

the thirteen neighbors who expressed no concerns if Mortenson received a STR

permit. As such, the thirteen witness statements were of limited evidentiary value.

Mindful that an error may not be predicated upon a ruling that excludes

evidence unless a substantial right of the party is affected, and the substance of the

evidence was made known to the tribunal by counsel, see La. C.E. art. 103( A)( 2),

we note that at the public hearing, through counsel, Mortenson advised the BOA of

the existence of the thirteen witness statements, explaining that thirteen contiguous

landowners had signed statements in favor of or indicating no opposition to the

issuance of a STR permit to Mortenson. Later, Mortenson spoke directly to the

BOA, pointing out that he had the signed consent of thirteen neighbors. Therefore,

well before its vote, the BOA was aware that the owners of thirteen of Mortenson' s

s See also St. Tammany Parish Code of Ordinances § 130- 32( a)( 8) (" The department from whom
the appeal is taken shall forthwith transmit to the [ BOA] all the papers constituting the record
upon which the action appealed from was taken.").

n.

fourteen neighboring properties were not opposed to the issuance of the STR

permit.

At the conclusion of the hearing, immediately before the BOA voted, a BOA

commissioner moved to deny relief to Mortenson, based on finding that when

Mortenson conducted short term rental activities prior to the February 16, 2022

filing of the application for a STR permit, Lambert and Faulkner were

insufficiently protected from the effects of the short term rental and personal

activities conducted by Mortenson on his property. Thereafter, the BOA

unanimously voted to carry the motion and upheld the denial of the STR permit.

Thus, despite its awareness of the position of Mortenson' s other thirteen neighbors,

the BOA ruled solely on the basis of Mortenson' s neighbors immediately adjacent

to his premises, a determination we have already concluded is not arbitrary and

capricious despite having been based on the complaints of individuals owning one

neighboring property. Accordingly, Mortenson is unable to demonstrate a

substantial right was affected by the alleged deficiency in the record, and he has

failed to establish a denial of due process.

DECREE

For these reasons, the district count judgment is affirmed. Appeal costs are

assessed against applicant -appellant, Chanse Mortenson.

AFFIRMED.

G Suggestion was made before the BOA and the district court that Mortenson was disqualified
from receiving a STR permit because he has been convicted of a crime within the last ten years.
See St. Tammany Parish Ordinance No. 22- 592( x)( 8) (" The [ Department] may deny issuance of
a [ STR] permit if it finds ... [ t]hat the applicant has been convicted of any crime involving drugs,
vice, or felony in a court of competent jurisdiction within the last ten years."). Although this
court has recently upheld Mortenson' s conviction, see State v. Mortenson, 2022- 1047 ( La. App.
1 st Cir. 4/ 26/ 23), 2023 WL 3085363, because his criminal conviction was not the stated basis for
the Department' s denial of the STR permit, and we have found the BOA was not arbitrary and
capricious in upholding of the denial of the permit, we conclude it unnecessary to discuss this
basis and pretermit such a discussion.

6