#### Charles F. LOZES, Charles B. Johnson and J. William Vaudry, Jr. v. Mr. & Mrs. J. Aubrey WATERSON.

No. CA-5437.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 12, 1987.

Dissenting Opinion Feb. 17, 1987.

Rehearings Denied March 19, 1987.

Writ Granted May 29,1987.

*156Terriberry, Carroll, & Yancy, Charles F. Lozes, Coleman, Dutrey & Thompson, Charles B. Johnson, McCloskey, Dennery, Page & Hennesy, J. William Vaudry, Jr., New Orleans, for appellees.

Casey, Babin & Casey, Thomas A. Casey, Basile J. Uddo, New Orleans, for appellants.

Before REDMANN, C.J., and GULOTTA, GARRISON, CIACCIO and ARMSTRONG, JJ.

GULOTTA, Judge.

Defendants appeal from a summary judgment granting a permanent injunction prohibiting the nonconforming use of a four-plex in a zoned two-family dwelling area. We affirm.

In the building owned by defendants, two of the four apartments had been vacant in excess of a six month period, and plaintiffs sought an injunction to prevent defendants from continuing the nonconforming use of the building.

Defendants argue that the trial judge, in granting the injunction, erroneously relied on *Pallet v. City of New Orleans, Dept. of Safety,*433 So.2d 1091 (La.App. 4th Cir. 1983), writ denied 440 So.2d 757 (La.1983), which defendants maintain misconstrued *State Ex Rel Time Saver Stores v. Board of Zoning Adj.,*261 So.2d 273 (La.App. 4th Cir.1972), writ refused 262 La. 311, 263 So.2d 47 (La.1972), a case in which this court interpreted Art. 12 § 2 of the Comprehensive Zoning Ordinance of the City of New Orleans. According to defendant, *Time Saver*stands for the proposition that a nonconforming building must be wholly vacant before it loses its nonconforming status, but the *Pailet*court erroneously concluded that the nonconforming use of a building is lost when the nonconforming part is vacant and the limited use of the other portions is conforming.

The pertinent section of the Comprehensive Zoning Ordinance of the City of New Orleans, Ordinance No. 4264 M.C.S. Art. 12 § 2 provides:

> “No building or portion thereof or land used in whole or in part for nonconforming purposes according to the provisions of this Ordinance, which hereafter becomes and remains vacant for a continuous period of 6 calendar months shall again be used except in conformity with the regulations of the district in which such building or land is situated. Neither the intention of the owner nor that of anybody else to use a building or lot or part of either for any nonconforming use, nor the fact that said building or lot or part of either may have been used by a makeshift or pretended nonconforming use shall be taken into consideration in interpreting and construing the word “vacant” as used in this section_”

In *Time Saver,*a building containing two commercial units on the ground floor and three apartments on the second floor enjoyed a nonconforming use in a single family dwelling area. One commercial unit and one residential unit had been vacated for six months, precipitating a suit to prevent nonconforming continued use of the property. We held, in that case, that when “a building is ‘used in whole’ for separate nonconforming uses”, and a portion becomes vacant for six months while the oth*157er units are continued in nonconforming use, “the vacant portion does not lose its nonconforming status under the ordinance.”

We do not interpret our holding in *Time Saver*to mean that a building must be wholly vacant for six months before losing its nonconforming status. We cannot say that the *Pailet*panel misinterpreted *Time Saver*when it concluded that a nonconforming use is lost where the non-vacant portions are used in a conforming manner.

In *Pailet,*a five-family dwelling located in a two-family dwelling area was purchased and intended for use as a four-family dwelling. At the time of purchase, four of the apartments were vacant and there was a dispute as to whether the remaining apartment had been vacant. We concluded that “when a house has been used in a nonconforming manner and has acquired a nonconforming status, that status may be lost if the premises are used only in a conforming manner for six months or more, and the nonconforming status may not be re-established.” In *Pail-et*we held that the property had lost its non-conforming status.

Considering the facts in the instant case, we conclude that the *Pailet*holding applies. In our case, two of the four apartments were vacant in excess of six monthh and two were not vacant. Because the two occupied units were conforming to the two-family zoned area, the property lost its nonconforming status. Accordingly, we find no error in the ruling of the trial judge granting the injunction.

Defendants further claim that the ordinance creates an irrebuttable presumption which provides for the loss of a nonconforming use merely by the passage of time, without regard to the circumstances surrounding the vacancy. Defendants point out that despite the property owner’s desire not to abandon the property, economic conditions might very well prevail whereby, despite the owner’s effort to rent the vacant property, the property remains vacant in excess of six months. According to defendants, this irrebuttable presumption, without regard to intent, constitutes a denial of due process. We reject this contention.

Although it is true that Art. 12 § 2 of the Comprehensive Zoning Ordinance provides that mere vacancy in excess of six months without regard to the owner’s intent can cause the loss of a nonconforming use, our courts have inferentially interpreted the ordinance as not denying due process or being unconstitutionally vague. See *Time Saver,*supra, and *Fuller v. City of New Orleans, Dept. of Safety & Permits,*311 So.2d 466 (La.App. 4th Cir.1975).

Having so concluded, based on our holding in the *Pailet*case, we affirm the judgment of the trial court.

AFFIRMED.

REDMANN, C.J., and CIACCIO, J., dissent with reasons to follow.

REDMANN, Chief Judge,

dissenting.

The majority reaches the result that an ideal zoning ordinance would doubtless reach if constitutionally permissible. Pre-termitting the constitutional arguments, the question is whether the *New Orleans*zoning ordinance reaches that result: whether its art. 12 § 2 (set forth in the majority opinion) extinguishes defendants’ legal nonconforming use of their four-apartment building, by reason of six months’ nonuse of two portions thereof. The answer is that the New Orleans ordinance does not purport to do so.

This writer agrees with Judge Ciaccio that the section of the ordinance at issue is correctly interpreted by *State ex rel. Time Saver Stores v. Board of Zoning Adjustments,*261 So.2d 273 (La.App. 4 Cir.1972), *cert. denied*262 La. 311, 263 So.2d 47, and misinterpreted by the alternative ratio of *Pailet v. City of New Orleans,*433 So.2d 1091 (La.App. 4 Cir.1983), cert. denied 440 So.2d 757 (La.1983). The writer sets forth fuller reasoning because of having concurred in *Pailet*on grounds he now deems wrong.

*Time Saver,*describing as “inadequate and inexplicit” the provision at issue, 261 *158So.2d at 275, reasons that that provision purports to apply to only two situations:

> “First and most obvious, when a ‘building * * * used in whole * * * for nonconforming purposes * * * becomes and remains vacant’ for a continuous period of six months, the ‘building’ cannot thereafter be used except in conformity with the zoning regulations.

> “Second, when a ‘building * * * used in part * * * for nonconforming purposes * * * becomes and remains vacant’ for the prescribed period, then the ‘portion thereof’ can thereafter be used only in conformity with the zoning regulations.” 261 So.2d at 276.

*Pallet*was a case of vacancy of the *whole*building for over six months. *Pallet*was therefore not controlled by *Time Saver*but also does not control this case, by its facts or by its primary reasoning:

> “We reverse the judgment of the Trial Court because we find that the property was ‘vacant!.... A building does not have to be unoccupied in the sense that it is abandoned to be considered ‘vacant’ within the meaning of the zoning ordinance.” 433 So.2d at 1093.

*Pallet*has relevance because the *Pallet*majority added an alternative ratio:

> “Moreover, even if we agreed ... that Mrs. Ponder’s apartment had not been ‘vacant’, the Trial Court erred in holding that the occupancy of one apartment can preserve the status of nonconforming use for the entire house_ [Preservation of the nonconforming status requires a continuing *nonconforming*use that is not interrupted for more than six months. A continuing *conforming*use is not sufficient to preserve a nonconforming status, and after 1978, Mrs. Ponder’s occupancy, if any, was only a *conforming*use as a single family dwelling.” *Id.*

*Pallet’s*alternative ratio is wrong (as was this writer’s then concurrence on that basis) not because *Time Saver*controlled (it did not) but because the New Orleans ordinance controls, and the *Time Saver*analysis of that ordinance is correct although partly obiter dictum. (Pailet’s holding on vacancy is in no way inconsistent with *Time*Saver’s analysis.)

Expanding on *Time Saver’s*analysis, one may hypothesize, as an example of a building used *in part*for nonconforming purposes, an apartment building one part of which is used for commercial purposes while all other parts (not nonconforming as to number) are used as residences, in a multi-family residential district. In such a case, no apartment used as a residence is nonconforming, and the continuing use of the residence portions would not preserve the nonconforming commercial use of the one portion of the building that had a nonconforming use.

On the other hand, one may hypothesize, as an example of a building used *in whole*for nonconforming purposes, a four-apartment (or 40-apartment) building wholly used as residences, in a two-family residential district. The ordinance gives no means to identify some two apartments as conforming uses and the rest as nonconforming. If some individual apartment stays vacant for more than six months, the owner would have no occasion to argue that the vacant apartment was a conforming one rather than a nonconforming one, because the ordinance does not in any case prohibit further use of that apartment as a separate living unit. In accordance with *Time Saver’s*logical analysis, the whole building is used for nonconforming purposes, rather than each individual apartment save some unidentified two. The legal nonconforming use of the whole building is terminated *by the New Orleans ordinance*only when the whole building remains vacant for over six months.

As *Time Saver*points out, the “portion thereof” provision of the New Orleans ordinance does not purport to be applicable piecemeal to each portion of an entire nonconforming building. The ordinance does not purport to eliminate each apartment of a nonconforming apartment building as each might stay vacant over six months— whether for needed repairs and redecorating or for cause beyond the owner’s control, such as today’s high unemployment rate.

*159Defendants’ building was used in whole for nonconforming purposes and enjoyed a legal nonconforming use status. The New Orleans zoning ordinance therefore does not extinguish its legal nonconforming use because, notwithstanding that some “portion thereof” remained vacant over six months, the whole building has not remained vacant over six months.

The judgment appealed from should be reversed.

CIACCIO, Judge,

dissents with reasons.

I agree with defendant's contention that *Pallet*misconstrued *Time Saver.*In *Timé Saver*the court held that where a building is used *in whole*for nonconforming purposes (even if some portions are vacant) the “building (whole)” provisions of the statute would apply and the “portion thereof” provisions of the statute would be inapplicable. Thus, the vacant “portion thereof” does not lose its nonconforming status as long as the other portions are continued in nonconforming use.

In this case the City Attorney interpreted the City’s zoning ordinance to require this “whole building” to be vacant before any portion lost its nonconforming status. I believe this interpretation to be correct and is line with the *Time Saver*decision.

The subject property, a four-plex, with four independent living units including, kitchens, is a “building used in whole for nonconforming uses”. Each apartment is nonconforming because of the presence of three other living units within the “building”. So long as more than two units exist within the “building” their collective physical presence presents any one unit from becoming conforming.

The majority’s opinion must engage in the fiction of assuming that the vacancy in two units cause them to physically change (i.e., become incorporated into the remaining two units with kitchens removed) or to constructively disappear from the building. But, the two vacant units have in fact remained unchanged — they remain in the “building” and continue to make the “building” a four-plex, not a fictional duplex.

Accordingly, the entire building must be vacant for 6 months before any unit loses its nonconforming status. This is consistent with *Time Saver*and is the correct interpretation of the zoning ordinance.