Sunset Harbour, LLC v. The City of New Orleans

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SUNSET HARBOUR, L.L.C. v. THE CITY OF NEW ORLEANS

No. 2023-CA-0379

Court of Appeals of Louisiana, Fourth Circuit

November 29, 2023

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-07392 DIVISION "A" Honorable Ellen M. Hazeur, Judge. AFFIRMED

Jonah A. Freedman JONAH FREEDMAN LAW, LLC COUNSEL FOR PLAINTIFF/APPELLANT

Shawn Lindsay, Donesia D. Turner DEPUTY CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Dale N. Atkins, Judge Rachael D. Johnson Judge Nakisha Ervin-Knott)

Rachael D. Johnson, Judge

Appellant Sunset Harbour, LLC ("Sunset"), seeks review of two district 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 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 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 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 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, 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

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