Martha Elizabeth Sassone v. Hartel Enterprises, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-166

MARTHA ELIZABETH SASSONE

VERSUS

HARTEL ENTERPRISES, L.L.C., ET AL.

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APPEAL FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, NO. 638,779 Div. P
HONORABLE ROBERT L. LOBRANO, DISTRICT JUDGE, AD HOC

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

Thomas G. Wilkinson
Philip A. Gattuso
P. O. Box 1190
Gretna, LA 70054
Telephone: (504) 368-4141
COUNSEL FOR:
Defendants/Appellees - Louis Savoye, Department of Code
Enforcement and the Parish of Jefferson

Thomas W. Milliner
Brian J. Burke
3636 S. I-10 Service Road West - Suite 206
Metairie, LA 70001
Telephone: (504) 835-9951
COUNSEL FOR:
Plaintiff/Appellant - Martha Elizabeth Sassone

Coleman D. Ridley, Jr.
Joshua J. Lewis
Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P.
201 St. Charles Avenue
New Orleans, LA 70170
Telephone: (504) 582-8000
COUNSEL FOR:
Defendant/Appellee - Hartel Enterprises, L.L.C.

THIBODEAUX, Chief Judge.

This case involves a zoning dispute between two commercial property

owners. The plaintiff-appellant, Martha E. Sassone, filed a suit for judicial review

against the defendants-appellees, Hartel Enterprises, L.L.C., and Louis Savoye, the

Jefferson Parish Director of the Department of Inspection and Code Enforcement

(DICE). Judicial review was sought after the Board of Zoning Adjustments (BZA)

determined that Hartel’s planned fitness facility was a “permitted” use under the

zoning code and granted Hartel a parking variance for fewer spaces than the code

required. Sassone appealed the BZA decision to the district court in Jefferson Parish,

and the district court affirmed the BZA decision. For the following reasons, we

affirm.

I.

ISSUES

We must decide:

(1) whether the trial court erred in affirming the BZA
decision that the planned fitness facility is a
“permitted” use under the zoning code; and

(2) whether the trial court erred in affirming the parking
variance granted by the BZA.

II.

FACTS AND PROCEDURAL HISTORY

Sassone is the owner of the Salon Selonj at 105-107 Aris Street in

Metairie, Louisiana, which is located in the immediate vicinity of 601 Frisco Avenue

in Jefferson Parish. Hartel submitted plans to convert the Frisco Avenue property

from its current use as Gulf Optical, employing over twenty (20) people during

normal business hours, to a small franchise fitness studio called Snap Fitness, which

will be run by one employee at a time and will be open twenty-four hours a day, seven

days a week. The BZA determined that a fitness studio was a permitted use in the

commercially zoned district at issue, and that the 4,800 square foot facility planned

would require twenty-four (24) parking spaces. The plan indicated only fourteen (14)

parking spaces. Hartel requested a variance to ten (10) spaces, which was granted.

Sassone appealed the BZA decision and now appeals the district court’s affirmance

of that decision.

III.

LAW AND DISCUSSION

Standard of Review

A prima facie presumption of validity attaches to zoning board actions,

and a reviewing court cannot substitute its own judgment for that of the board. The

reviewing court cannot interfere absent a showing by the appellant that the board was

arbitrary and capricious or that the board abused its discretion. On appeal, the person

who opposes a zoning board’s decision bears the burden of proof that the decision

was arbitrary, capricious, and unreasonable. Parish of Jefferson v. Davis, 97-1200,

97-1201 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, writ denied, 98-2634 (La.

12/11/98), 730 So.2d 460; Cerminaro v. Jefferson Parish Zoning Appeals Bd.,

02-1041 (La.App. 5 Cir. 2/11/03), 838 So.2d 193.

Permitted Use

The area containing the commercial property of the parties is zoned C-1,

Neighborhood Commercial District. The building, lot, parking and other

requirements of all zoning districts are provided for in Chapter 40 of the

Comprehensive Zoning Ordinance (CZO). The section pertaining to the C-1

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Neighborhood Commercial District is located in Article XIX of Chapter 40 of the

CZO and stated, prior to its recodification on December 12, 2007, in pertinent part

as follows (emphasis ours):

Article XIX. Neighborhood Commercial District C-1

Sec. 40-321. Description.

This district is composed of certain lands and structures
used primarily to provide for the retailing of goods and the
furnishing of selected services . . . .

Sec. 40-322. Permitted uses.

In C-1 districts only the following uses of property shall be
permitted:

(1) Any existing stand-alone residential use . . . .

(2) A residential dwelling shall be permitted only in the
main structure containing non-residential uses permitted .
...

(3) Apartment hotel.

(4) Bakeries, retail . . . .

(5) Banks, including drive-in banks.

(6) Barber shops and beauty shops.

(7) Board and care home . . . .

(8) Catering and delicatessen business.

(9) Cemeteries . . . .

(10) Clinic, medical, dental, chiropractic, or an
establishment operated by a massage therapist . . . .

(11) Clubs and lodges.

(12) Copying service.

(13) Custom dressmaking, millinery, tailoring or similar
retail trades employing not more than five (5) persons . . ..

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(14) Dry cleaning and laundries . . . said business not to
employ more than five (5) persons on the premises.

(15) Elderly housing and assisted living facility . . . .

(16) Filling stations.

(17) Funeral homes, mortuaries, and crematories.

(18) Government structures and land.

(19) Parking garages, including parking lots.

(20) General retail stores and establishments having a
gross floor area of not more than twenty-five thousand
(25,000) square feet, or twelve (12) percent of the total
area of the commercial shopping center in which the retail
store or establishment is located, whichever is larger.

(21) Convalescent and nursing homes.

(22) Institutions, but not to include chemical dependency
units and penal, correction or mental institutions.

(23) Laundromats.

(24) Libraries, museums, community centers . . . .

(25) Locker plants, renting lockers for storage of food.

(26) Nurseries and flower gardening.

(27) Nursery schools, pre-schools, and kindergartens . . . .

(28) Offices . . . not exceeding thirty thousand (30,000)
square feet in one (1) building . . . .

(29) Public utility structures . . . .

(30) Publishing without printing.

(31) Recreational uses.

(32) Schools.

(33) Shops, light repair, employing not more than five (5)
persons on the premises.

(34) Stores, retail having a gross floor area of not more
than twenty-five thousand (25,000) square feet . . . .

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(35) Taxi stands and stands for public transit vehicles.

(36) Accessory buildings and uses customarily incidental
to the above uses, . . . .

(37) Animal hospitals and veterinary clinics . . . .

(38) Commercial transmission towers, radio towers . . . .

Hartel and Mr. Savoye, Director of DICE, argue that, although not

specifically listed in the C-1 classification, the fitness studio is permitted under

subsection 20 listed above, which allows “general retail stores and establishments.”

Sassone argues that the facility is not permitted because it is not specifically listed,

and further argues that the retail establishment of subsection 20 applies only to the

sale of goods, not to the sale of services, which is the main purpose of the intended

health facility. We disagree. One has but to examine the first sentence of Section 40-

321’s description as well as the entire list of uses under Section 40-322 above to

determine that a commercial district zoned as C-1 includes businesses that provide

services, not just businesses that sell goods. In fact most of the above-listed uses are

for service establishments.

Moreover, the record reveals that most of the other eleven businesses in

this commercial strip center are service establishments: a barber shop, a remediation

service, a Karate studio, a mail and parcel service, an alterations business, a

washateria, a dry cleaner, and an attorney’s office, almost all of which are not

specifically listed uses under Section 40-322 above. Mr. Charlet, the regulatory

manager for DICE, acting as assistant Director, testified in his deposition as follows:

“In the world of zoning enforcement there are more uses out there than are listed.

And the obligation of the director is to characterize [sic] those uses not listed into the

ones most nearly resembled in the zoning ordinance. . . . ” Accordingly, the trial

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court did not err in affirming the BZA’s determination that Snap Fitness constitutes

a “permitted” use in a C-1 district.

Hartel and Mr. Savoye argue also that, under a “cumulative

interpretation,” because health clubs are permitted in a GO-2, General Office,

District, which is a more restrictive district, the health club should be permitted in a

C-1 district which is less restrictive. We do not reach this argument because we do

not need to examine Snap Fitness under GO-2 or a cumulative interpretation when

it clearly constitutes a permitted used under C-1 at Section 40-322, subsection 20, as

a general retail establishment. The BZA did not mention subsection 20 or district

GO-2 or cumulative interpretation in its judgment, but stated simply: “Please note:

Snap Fitness is a ‘permitted’ use.” The district trial judge reviewing the BZA

decision indicated in his Reasons for Judgment that he was “satisfied that the CZO

contemplates the Director using any number of factors, including ‘cumulative

interpretation’ to reach his decision” and that the trial judge found no error,

“whatever” methods were used by the BZA. We find this too broad and sweeping a

statement on the part of the district court, but the result is correct, and we find no

reversible error in the trial court’s affirmance of the BZA.

Parking Variance

The BZA determined that the 4,800 square foot building being converted

for Snap Fitness would require twenty-four (24) parking spaces and then granted a

variance to Hartel, reducing the required number of spaces to fourteen (14). Sassone

asserts that the BZA lacked jurisdiction to grant the off-street parking variance to

Hartel because the BZA cannot grant a variance for a use not permitted in a C-1

district. This argument has no merit because, as indicated above, Snap Fitness does

constitute a permitted use in a C-1 district. The sections conferring authority on the

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BZA for granting and calculating off-street parking variances and waivers provide

in pertinent part as follows (emphasis ours):

Article XXXV. Off-street Parking and Loading
Regulations

Sec. 40-661. General requirements.

(a) Location of required parking spaces except as may
otherwise be provided in this section, shall be located as
provided below.

(1) Off-street parking facilities for:

....

(3) Non-residential uses in non-residential districts. All
other uses except one-family, two-family, three-family,
four-family dwellings, condominiums, and townhouses
may have off-site parking facilities in non-residential
districts. Required parking spaces for GO-2 General
Office District, GO-1 General Office District, H-1 Medical
Service District, H-2 Medical Service District, BC-1
Business Core District, C-1 Neighborhood Commercial
District. . . . shall be located on the same lot as the
principal use or on land within three hundred (300) feet of
the lot line of the principal use and not separated by a
street, utility right-of-way or public right-of-way. . . .

Sec. 40-662. Off-street parking requirements.

Off-street parking spaces shall be provided on any lot for
which any of the following listed uses are hereafter
established . . . .

....

(18) General Business, One (1) space for each
Commercial or Personal two hundred (200)
Service Establishments, square feet of gross
catering to retail trade, floor area
i n c l u d i n g
“Supermarkets”

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Sec. 40-792. Powers of the board.

The board of zoning adjustments shall have all the powers
and duties prescribed by this ordinance, which are more
particularly specified as follows:

....

(2) Exceptions. To grant an exception from the
provisions of the Comprehensive Zoning Ordinance in the
following instances:

....

(3) Variances. In accordance with standards,
hereafter prescribed, to grant variances from the provisions
of the Comprehensive Zoning Ordinance in the following
instances:

....

b. Waive or reduce the parking and loading
requirements in the R-3 Multiple-Family
Residential, and all other less restrictive
districts, however, appeals for parking
requirement reductions where the required
parking exceeds ten (10) spaces shall be
limited to a maximum of ten (10) spaces or
ten (10) percent of the required parking,
whichever is greater, and shall be considered
only if all parking spaces are standard size.
The provisions of this paragraph are subject
to section 40-481.

Mr. Charlet testified that the proper formula for calculating the number

of required parking spaces is set forth above in the Use Table at Section 40-662,

subsection (18), since Snap Fitness, for parking purposes, fits the use of “General

Business, Commercial or Personal Service Establishments, catering to retail trade.”

The floor area of Snap Fitness after conversion will be 4,800 square feet, which is

divided by 200 to arrive at a required number of parking spaces, which is a total of

twenty-four (24) spaces in this case. Pursuant to Section 40-792 above, the BZA can

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grant a variance and waive a maximum of ten (10) spaces, which was done in this

case, resulting in a reduction of twenty-four (24) parking spaces to fourteen (14)

parking spaces. The reduction for Hartel constitutes a final requirement that Hartel

provide parking at fifty-eight percent (58%) of the original required spaces. In-depth

parking studies were done. The record reveals that the other tenants in this

commercial area were granted variances and have fewer than fifty-percent (50%) of

the required spaces. More specifically, where an overall 207 parking spaces are

required, only 74 parking spaces exist.

The record further reveals that the current tenant in the Frisco Avenue

property, Gulf Optical, has over twenty (20) employees and only nine (9) parking

spaces. Pursuant to the renovation planned by Hartel, a building and a loading dock

in the rear of the property will be demolished, and a total of fourteen (14) parking

spaces will be provided with only one (1) employee operating Snap Fitness. That

results in five (5) more spaces for nineteen (19) fewer employees. Because the

facility will be open twenty-four hours a day every day, there will be no closing hour

jams as people will not have to hurry to get their work-out in before closing. Studies

at other Snap Fitness franchises in the parish indicate that Snap Fitness has an

average of about six clients per hour. Hence, the conversion in this case will greatly

improve the parking scenario at the subject property.

At the BZA hearing, Board member Carey Hammett stated that she had

visited a Snap Fitness facility in Kenner at 4:30 p.m. and found a beautiful facility,

not crowded, and a first class operation that should “appreciate” property values in

the subject area. The BZA judgment in this case recited many of the above

considerations and advantages and stated that Snap Fitness would be an improvement

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to the site, and would increase property values and enhance the prosperity and general

welfare of the neighborhood and community.

Sassone further argues that the square footage of 4,800 feet was

miscalculated, and that the actual square footage is 4,980, requiring twenty-five (25)

parking spaces, instead of twenty-four (24), as found by the BZA. Hence, a waiver

of ten spaces could not reduce the number below fifteen (15) spaces, resulting in a

final shortage of one parking space. Through the deposition testimony of Mr.

Charlet, counsel for Sassone demonstrated how he arrived at 4,980 square feet using

measurements from one of the plans submitted. However, Mr. Charlet ultimately

testified that it was his understanding that a building and loading dock behind the

current facility would be demolished, which he indicated by placing two large X’s on

the drawing attached to his deposition, and that another plan would be submitted that

would cut the square footage down to 4,800 square feet. Mr. Charlet further testified

that it is not unusual, and that it happens occasionally, that a plan will be altered to

reduce square footage of a building, and then be resubmitted, in order to comply with

parking requirements. Hence, the evidence reveals that the BZA decisions in this

matter were not arbitrary, capricious, or unreasonable.

IV.

CONCLUSION

Based upon the foregoing, we find no abuse of discretion on the part of

the BZA in finding that Snap Fitness constitutes a permitted use in this C-1 district

and in granting the variance which reduces the required parking spaces at the subject

property to fourteen (14) spaces; nor do we find error on the part of the district court

in affirming the decisions of the BZA.

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All costs shall be assessed against the appellant, Martha Elizabeth

Sassone.

AFFIRMED.1

1
By order of the Supreme Court, this appeal was transferred to this court from the Louisiana
Fifth Circuit Court of Appeal due to the fifth circuit judges’ en banc recusal of themselves from this
case.

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