Metairie's Tolmas tract, the largest vacant plot along a prime section of Veterans Memorial Boulevard, must be used for single-family homes unless its owner successfully changesn the zoning, appeals court rules
Metairie's Tolmas tract, the largest vacant plot along a prime section of Veterans Memorial Boulevard, must be used for single-family homes unless its owner successfully changes its zoning, an appeals court has ruled. The decision gave a victory to residents in the nearby Whitney-Cecile Homeowners and Improvements Association, who oppose developer Morning Park LLC's plans to erect an office building on part of the property.
But the dispute, which dates to the early 1960s, may not be over. Harold Singer, president of the Whitney-Cecile home owners' association, called the ruling "a big win for the neighborhood," but admitted that the developer may continue to push for a commercial building.
Indeed, Morning Park's attorney Phillip Wittmann said Monday that the property will be used for commercial purposes, one way or another. "One thing is clear, the property will end up as commercial," Wittmann said. "It's just a question of how we get there."
The developer's options could be a bit limited after the 2nd Circuit Court of Appeal last week ruled that a 51-year-old court injunction favoring a previous owner had not transferred to Morning Park and could not be cited to overrule the parish's residential zoning on the property.
In a 4-1 ruling on Feb. 20, the Shreveport-based court said a 1962 injunction allowing for an office building on the property despite its residential zoning was essentially voided when the property's previous owner, Oscar Tolmas, demolished the nonconforming structure nearly a decade ago. Tolmas sold the land to Morning Park in 2004, and the firm sought a permit for an office building and parking garage. The parish denied the request, citing the zoning restriction.
That ignited the ongoing legal fight.
"The (1962) injunction, in the context in which it was issued, did not give Mr. Tolmas or his successors the unlimited right in perpetuity to use the property for whatever purpose they might choose," the 2nd Circuit Court ruled. That overrules a decision by Judge June Berry Darensburg of the 24th Judicial District Court in Gretna, who in 2011 ruled that the 1962 injunction still trumped the land's zoning.
The 2nd Circuit also said that because Tolmas' office building was demolished and the land sat vacant for more than a year, the nonconforming use of the property "was terminated," meaning it has to conform to its residential zoning. Judge John Harrison wrote the majority opinion, with Judges Jay Caraway, Milton Moore III and Larry Lolley concurring.
Judge Fred Sexton dissented, arguing that since Morning Park is a legal successor to Tolmas, the company "enjoys the benefits" of the 1962 court injunction. Sexton also noted that most of the properties along busy Veterans were commercial -- and still remain so -- which is more in line with the use the owners of the Tolmas tract propose now.
The Tolmas tract has come to illustrate the constant tension between commercial and residential interests in a part of the parish that developed without a master plan. The tract is wedged between a neighborhood of single-family homes and one of the busiest sections of commercial real estate in Jefferson, near the intersection of Veterans and Causeway boulevards.
"You can't deny the fact that the property is on Veterans. But you can't deny the fact that it's in a residential area. That's what makes this complicated," said Jefferson Parish Councilwoman Cynthia Lee-Sheng, who represents the area.
Wittmann said his client has not decided whether to file a writ with the state Supreme Court or to seek a rezoning from the parish, to a commercial designation. Singer said the neighborhood group will continue to push for the property developing with homes instead.
If the contractor seeks rezoning, Lee-Sheng would play a crucial role in any decision. She would not discuss what she would do in that case. But she said she would hope for a solution on which both sides can agree. "Anything that happens in that property, you'd like to see the owner work with the neighborhood," she said.