Is New Orleans constitutionally required to charge property owners for building encroachments?

I don't think so. They are permissible encroachments as contemplated by La. C.C. art. 459 and La. R.S. 9:5627 ("A building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain."). The City is not “gifting” these encroachments into public air space – they are allowed by law. 

Compare to Band v. Audubon Park Com'n case from 10 years ago. 936 So. 2d 841 (La. Ct. App. 4th Cir. 2006). There, the court held that a brick patio and fence on park property was not an “encroachment” within the context of Civil Code Article 459 and La. Rev. Stat. Ann. § 9:5627 since the public was denied any use in the area of the brick patio and fence. Accordingly, the court ordered the removal of the brick patio and fence in accordance with Civil Code Article 458. Here, the public is only denied the use of the air actually being occupied by the eave.

William Sentell, CFE

Franchise & Litigation Partner at Akerman LLP

8y

Isn't this a takings clause issue then?

Ed Fiducia

I help colleagues and clients determine appropriate e-discovery solutions from both a technology and Discovery Management standpoint.

8y

Well done! Right to the point...

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