§746. Review by governing body or authority and by courts of actions of constitutionally created historic preservation district commissions; right to compel

A. This Section is for the purpose of protecting and promoting the public welfare, protecting and preserving the cultural and historical heritage of the state, and protecting the public trust and enforcing and fulfilling the mandates of the Constitution of Louisiana related to any constitutionally created historic preservation district commission.

B. The following definitions shall apply in this Section:

(1) "Business agent or lessee" means an agent or lessee of an owner of a private or semi-public building, or other private or semi-public immovable property located, in whole or in part, within a historic preservation district, who is operating a business in, or has control of, the building or immovable property, but shall not include a residential lessee who merely resides or is domiciled in the building.

(2) "Commission" means (a) each historic preservation commission authorized, created, established, and/or existing under the Louisiana Constitution of 1921 for which constitutional authority is retained by the Louisiana Constitution of 1974 and (b) each historic preservation commission which is created or established, now or hereafter, in the Louisiana Constitution of 1974.

(3) "District" means a designated or defined area of a municipality placed under the authority of a commission for purposes of historic preservation.

(4) "Essential assets" means (a) the quaint and distinctive character of a district, (b) the value to the community of the buildings having architectural or historical worth in a district, and (c) the public trust placed in a commission, or in a governing body or authority, by the constitution for the preservation of (a) and (b).

(5) "Essential duties" means to (a) preserve a district for the benefit of the people of the district, the municipality, and this state, (b) prevent the quaint and distinctive character of a district from being injuriously affected, (c) protect the value to the community of the buildings having architectural and historical worth from being impaired, and (d) ensure that a reasonable degree of control is being exercised over the architecture of private and semi-public buildings erected on or abutting the public streets of a district.

(6) "Person" means a commission, a governing body or authority of a district, an applicant for a permit from a commission, any incorporated or unincorporated neighborhood or residential group or association which has members residing or domiciled in the district, any landowner association which has members owning, leasing, or using immovable property in the district, or any business association which has members operating businesses in the district, and any incorporated or unincorporated historical preservation association having members domiciled in this state.

(7) "Quaint and distinctive character of a historic preservation district" includes but is not limited to the historic or traditional ambiance of the district, the antiquity of the district, the historic "tout ensemble" of the district, the old-fashioned or traditional neighborhood quality of the district, and the lighting and traditional architectural styles and details of the district.

C.(1) Any person aggrieved by a decision, recommendation, act, failure to act, or proceeding of a commission or an agency of the governing body or authority which has permitting, regulatory, or enforcement authority within a district, which decision, recommendation, act, failure to act, or proceeding is inconsistent with the public trust placed in, or the essential duties or purpose of, the commission, or the governing body or authority, by the constitution for the preservation of essential assets of the district, may apply in writing to the governing body or authority for a reversal or modification of the decision, recommendation, act, or proceeding, or for an order to take action or a specific action, in order to comply with the purpose and essential duties of the commission or the governing body or authority. Such person may also have a stay or stop order issued while the application is pending.

(2) An application or appeal under Paragraph (1) of this Subsection shall be filed within thirty days of the commission, or an agency of the governing body or authority, notifying the applicant in writing or, if not notified in writing, within thirty days of the applicant's actual knowledge of, but no later than one hundred eighty days of, the decision, recommendation, proceeding, act, or failure to act.

(3) The governing body or authority shall consider the application or appeal filed under Paragraph (1) of this Subsection within forty-five days of its filing and shall thereafter render a written decision setting forth its reasons within a reasonable period of time. In reaching its decision, the governing body or authority shall consider paramount the purpose and essential duties of the commission, or the governing body or authority.

(4) In a matter filed under Paragraph (1) of this Subsection, if it appears from the specific facts alleged in the application and verified by a supporting affidavit that immediate and irreparable injury, loss, damage, or impairment will result to an essential asset of the district, the governing body or authority shall order or grant a stay or stop order. Security shall not be required.

D.(1) Any person aggrieved by an action or a decision of a governing body or authority affecting a district for the reason that an action or decision of the governing body or authority is inconsistent with the public trust placed in, or the essential duties and purpose of, the commission, or the governing body or authority, by the constitution for the preservation of essential assets of the district, may intervene in an action, or file suit within thirty days from the date of the action or decision in a district court in the parish in which the district is located to seek reversal or modification of the decision, injunctive relief, writ of mandamus, or any other relief provided by law or equity, in order to seek compliance with the purpose and essential duties of the commission, or the governing body or authority.

(2) A suit filed under Paragraph (1) of this Subsection shall be tried as a summary proceeding. The court shall take proof as in ordinary cases. In actions for injunctive relief, the court shall also take verified pleadings and supporting affidavits.

(3) In an action under Paragraph (1) of this Subsection, the court shall consider paramount the purpose and essential duties of the commission and its governing body or authority under the constitution, and the court shall liberally construe the purpose and essential duties in favor of preserving the quaint and distinctive character of the district.

(4) It is not a defense to an action under Paragraph (1) of this Subsection that other similar non-conforming alterations in violation of historic preservation rules, regulations, laws, or the constitution exist or have been allowed to exist by the commission, or its governing body or authority or one of its agencies.

(5) In an action under Paragraph (1) of this Subsection, if it appears from the specific facts alleged by verified petition or by supporting affidavit that immediate and irreparable injury, loss, damage, or impairment will result to an essential asset of the district, the court shall grant a stay, or issue a temporary restraining order or preliminary injunction. Security shall not be required.

E.(1) Notwithstanding Subsection C of this Section, while pursuing or attempting to pursue relief under Paragraph (1) of that Subsection, any person aggrieved by a decision of or the issuance of a permit by a commission, or an agency of the governing body or authority which has permitting, regulatory or enforcement authority within a district, which decision or permit is inconsistent with the public trust placed in, or the essential duties or purpose of, the commission, or the governing body or authority, by the constitution for the preservation of essential assets of the district, shall have an immediate right to seek injunctive relief in a district court in the parish in which the district is located in order to prevent immediate and irreparable injury, loss, damage, or impairment to an essential asset of the district.

(2) In an action under Paragraph (1) of this Subsection, the court shall consider paramount the essential purpose and duties of the commission and its governing body or authority under the constitution, and the court shall liberally construe the purpose and duties therein in favor of preserving the quaint and distinctive character of the district.

(3) It is not a defense to an action under Paragraph (1) of this Subsection that other similar non-conforming alterations in violation of historic preservation rules, regulations, laws, or the constitution exist or have been allowed to exist by the commission, or its governing body or authority or one of its agencies.

(4) In an action under Paragraph (1) of this Subsection, if it appears from the specific facts alleged by verified petition or by supporting affidavit that immediate and irreparable injury, loss, damage, or impairment will result to an essential asset of the district, the court shall issue a temporary restraining order or preliminary injunction. Security shall not be required.

F.(1) An owner of a private or semi-public building, or other private or semi-public immovable property, located in whole or in part within a district is bound to keep the building and immovable property in repair so that the building or immovable property does not fall into ruin. A building has fallen into ruin when the building is in danger of falling, part of it falling, or needing to be demolished. The danger need not be imminent.

(2) Any person may compel an owner in violation of Paragraph (1) of this Subsection, or, if justice requires, the owner's business lessee or agent who has control of the building or immovable property, to have the building or immovable property reasonably repaired and properly cared for in reasonable compliance with Paragraph (1) of this Subsection. The reasonable repair and proper care of the building or the immovable property shall be made in compliance with the rules of the commission for the district in which the building or immovable property is located.

G. In all actions under this Section, the supreme court and courts of appeal shall consider paramount the purpose and essential duties of the commission and its governing body or authority under the constitution, and the corresponding duties and limitation of rights of the owner or lessee of a building or immovable property located in whole or in part within the district resulting from or because of its designation. The court shall liberally construe the purpose, duties, and limitation of rights in favor of preserving the quaint and distinctive character of the district.

H. The rights, actions, and rights of action in this Section are in addition and supplemental to any other rights, actions, and rights of action provided by the constitution, law, home rule charter, municipal ordinance, rule, or regulation.

Acts 2001, No. 1228, §1, eff. July 9, 2001.